First, the specific connotation of enterprise compliance non-prosecution:
When handling criminal cases involving enterprises, procuratorial organs make decisions not to approve arrest or not to prosecute according to law, or put forward suggestions to reduce sentencing according to the lenient system of pleading guilty and recognizing punishment, at the same time, they urge enterprises involved to make compliance commitments, and actively rectify and implement them according to the actual situation of handling cases, so as to promote enterprises' compliance and law-abiding operation and reduce and prevent corporate crimes. This is the "enterprise compliance non-prosecution system" with China characteristics, which actually contains multiple meanings such as "compliance non-arrest", "compliance non-prosecution", "compliance lenient sentencing suggestion" and "compliance lenient punishment suggestion".
Two, China's procuratorial organs in the process of exploring the enterprise compliance non-prosecution system mainly faces three difficulties:
The first is the scope of application of the compliance non-prosecution system.
At present, most pilot grass-roots procuratorial organs apply this system to minor criminal cases in which enterprises may be sentenced to less than three years' imprisonment, but this system cannot be applied to enterprises suspected of serious crimes.
This will cause those enterprises that are suspected of serious criminal offences but are willing to establish a compliance system to be unable to obtain criminal incentives by applying the system, and these enterprises may also be unable to get the opportunity to establish a compliance system. In this case, the implementation effect of the compliance non-prosecution system will be limited and will not have a wider social effect.
The second is the choice of supervision mode, that is, whether the enterprise should choose the procuratorial organ-led mode or the independent supervisor mode.
According to the practice of European and American countries, the procuratorial organ will appoint a compliance supervisor to the enterprise to supervise the process of establishing the compliance system after signing an agreement with the enterprise to suspend prosecution. According to China's practice, under the leading mode of procuratorial organs, procuratorial organs can choose to appoint professional independent supervisors to supervise the construction and implementation of enterprise compliance system according to the agreement; Under the independent supervisor mode, enterprises usually appoint people with professional knowledge and relevant qualifications, such as lawyers, accounting and tax professionals. It remains to be further explored which mode is more conducive to enterprises to promote the compliance system and realize the institutional purpose of non-prosecution for compliance.
The third is the effectiveness and acceptance criteria of compliance rectification.
After the enterprises involved take the initiative to undertake compliance rectification, the procuratorial organs will require the enterprises involved to submit compliance rectification plans and special compliance rectification plans, and accept the compliance rectification results of the enterprises involved within a certain period of time. However, in practice, due to the lack of clear compliance rectification plan and acceptance standard guide, procuratorial organs only pay attention to compliance management process, while ignoring substantive compliance system reconstruction such as compliance risk prevention, identification and response. It is difficult for procuratorial organs to examine the effectiveness of enterprise compliance rectification from a practical point of view, which makes the acceptance of compliance rectification of enterprises involved easy to become a mere formality, which is not conducive to the landing of the reform goal of compliance non-prosecution
legal ground
Article 122 of the Civil Procedure Law of People's Republic of China (PRC) * * * Prosecution must meet the following conditions:
(1) The plaintiff is a citizen, legal person and other organization that has a direct interest in the case;
(2) Having a clear defendant;
(3) Having specific requests, facts and reasons;
(4) It falls within the scope of civil litigation accepted by the people's court and is under the jurisdiction of the sued people's court.