Expert advice on high incidence of criminal cases facing private enterprises
Incorporate corporate compliance systems into the criminal legal system
□ Our reporter Chen Lei
□ Correspondent Meng Shan and Li Yanbin
In recent years, private enterprises have frequently issued criminal cases including corruption cases, which has become a risk faced by private enterprises in the development process.
Private enterprises are facing a trend of high incidence of criminal cases. From an external perspective, there are legislative, law enforcement, and judicial reasons; from an internal perspective, there are also corporate reasons. For example, private enterprises tend to be relatively irregular in management and underestimate criminal risks.
Recently, the "Private Economic Protection Criminal Rule of Law Forum" sponsored by the China Criminal Law Research Association, the Criminal Law Research Center of Renmin University of China, and the Sunshine Integrity Alliance was held. The participating experts made the above analysis at the forum.
Experts at the meeting suggested that it is a general trend to incorporate the construction of corporate compliance systems into the scope of criminal law.
At the same time, strengthening corporate self-regulation through compliance, especially under the external pressure of strong administrative supervision and criminal law, activating corporate self-regulation is a key revolution for the entire crime governance.
High incidence of criminal cases
Restrict enterprise development
According to media reports, recently, the former vice president of Cainiao Network and the head of the ground network business Shi Mou was severely violated by an internal announcement.
Prior to this, Shi had been criminally detained by the police.
Public information shows that Shi served as the vice president of Fuxing Real Estate and joined Cainiao Network in 2016.
According to public information, since this year, Cainiao.com has had many employees involved in corruption criminal cases.
In January of this year, Hu Mou, the property manager of Party A dispatched by Zhejiang Cainiao Supply Chain Management Co., Ltd. to a logistics park in Cainiao, was sentenced to 8 fixed-term imprisonment by the People’s Court of Xihu District, Hangzhou City, Zhejiang Province in the first instance for the crime of bribery by non-state employees. month.
In October of this year, Jiang Mou, a business development expert at Zhejiang Cainiao Supply Chain Management Co., Ltd., was sentenced to 10 months imprisonment and 1 year suspended by the Hangzhou Xihu District People's Court in the first instance for the crime of accepting bribes by non-state employees.
Since the beginning of this year, the private enterprises involved in criminal cases are not only Cainiao.
At the end of April this year, Meituan announced the results of the investigation and handling of the criminal case of ecological anti-corruption in the first quarter of this year.
The notification shows that during the notification period, Meituan found 12 criminal cases of various types and transferred 33 people to the public security organs for investigation and punishment, including 7 internal employees, including middle and senior management cadres such as Zhu, the director of the hardware department of the LBS platform two-round business unit.
On the eve of the Dragon Boat Festival this year, Meituan notified 6 violations and penalties of its partners from 2019 to the first half of 2020, including two criminal cases.
On the eve of the Mid-Autumn Festival this year, Meituan once again notified the public of two illegal and fraud cases.
One of them was a case of soliciting bribes for Meituan employees.
Reported by a partner, a departed employee of the Meituan Daojia business group took advantage of the convenience of his position to set up subsidies for many merchants in violation of regulations, and demanded huge amounts of bribes.
The person involved has been criminally detained by the Beijing police in accordance with the law.
In September this year, Narada Business Data News Department released the "Internet Enterprise Anti-Corruption Report in the First Half of 2020".
According to the report, in the first half of this year, about 60 cases of corruption and fraud in the Internet industry were announced by the China Judgment Documents Network and disclosed by enterprises on their own initiative. More than 100 people were expelled or transferred to public security organs.
"It is worth noting that among the Internet companies that exposed anti-corruption cases in the first half of 2020, most companies discovered and reported anti-corruption behaviors through self-censorship and self-notification. This means that Internet companies' crackdown on corruption and fraud has become normal. "The Internet Enterprise Anti-Corruption Report in the First Half of 2020" stated.
Corruption cases of insiders are only a microcosm of the criminal legal risks that private enterprises encounter.
At the "Private Economic Protection Criminal Rule of Law Forum", Sun Chunyu, deputy director of the Legal Policy Research Office of the Beijing Municipal People’s Procuratorate and Secretary-General of the Procuratorial Reform and Development Research Center, said that the high incidence of criminal cases in private enterprises was in 2015, 2016, and 2017. The number of criminal cases was 650, 1255, and 2016, showing an upward trend year by year.
Han Yi, dean of the Law School of Minzu University of China, believes that private enterprises are facing a high incidence of criminal cases.
"Criminal legal risks are becoming a restrictive bottleneck for the development of enterprises. Once an enterprise encounters criminal legal risks, its vitality will be severely injured, and the worst will be devastated." Huang Xiaoliang, a professor at the Institute of Criminal Law Science of Beijing Normal University, told a reporter from the Rule of Law Daily.
Superposition of internal and external factors
Relevant legislation is lagging
At the forum, the participating experts discussed the reasons for the high incidence of criminal cases in private enterprises.
Han Yi believes that the criminal legal risks of private enterprises are mainly due to the superposition of internal and external factors.
From an external point of view, there are legislative, law enforcement, and judicial reasons; from an internal point of view, there are also reasons for the enterprise itself. For example, private enterprises have relatively irregular management and tend to underestimate criminal risks.
Han Yi analyzed that it is worth noting that the criminal risk of private enterprises stems from the lack of legislation or justice itself, such as the problem of ambiguity in legislation. Under the dual mode of some special crimes and violations in our country, some criminal crimes and administrative violations The boundary between the two is relatively fuzzy, and it is easy to pursue general administrative violations of private enterprises as criminal crimes, which is particularly prominent in legal crimes involving enterprise management.
In Han Yi's view, the criminal risks generated by private enterprises from within are the relatively irregular personnel management of private enterprises.
For example, the crime of accepting bribes by non-state employees in the field of commercial bribery; followed by relatively irregular financial management.
For example, crimes related to the crime of embezzlement by office, as well as the crime of embezzlement of funds, etc.; finally, in the business development process of private enterprises, such as expanding the market, dealing with customers, bribery involving commercial bribery, and crimes against non-state workers Bribery etc.
Sun Chunyu also believes that the reasons for the high incidence of criminal cases in private enterprises include internal and external factors.
"From the perspective of internal factors, private entrepreneurs used to have relatively weak awareness of criminal risks, and there are some phenomena within enterprises, such as identity dislocation, such as dislocation in property rights. Personal property and personal legal income in private enterprises, as well as private enterprises The property boundary of the enterprise is not very clear, so the criminal law limit was touched when engaging in some business activities. In addition, the more important reason is that because the private enterprise has not established a modern governance system, the internal power of the enterprise is too concentrated. , Lack of limited supervision and restriction.” Sun Chunyu said.
In Sun Chunyu's view, from external factors, the business environment in the past was not so good, and the channels for private enterprises to obtain social resources and social opportunities were not smooth, leading to stress crimes.
The most common crimes committed by private entrepreneurs are crimes of illegally absorbing public deposits, embezzlement, fundraising fraud, loan fraud, contract fraud, bribery, etc. In other words, most of the crimes committed by private entrepreneurs are focused on corporate financing. Most of them are forced to commit crimes in order to alleviate the business difficulties of enterprises.
Regarding the lagging nature of legislation, Wu Qiaobin, director of the Legal Policy Research Office of the Supreme People’s Procuratorate, believes that some criminal legislation and economic legislation are lagging, some have loopholes, and some are always adopting the criminal law first model. The more typical financing field is investment and financing. The crime that everyone often gives is the crime of illegally absorbing public deposits. The statutory prerequisite for the crime of illegally absorbing public deposits is illegal, but what is illegal?
In fact, there has been no clear legal basis for a long time.
Improve criminal compliance
Protect the private economy
An ensuing question is, how can private enterprises prevent criminal risks?
Han Yi’s suggestion is to promote private enterprises to establish an internal control mechanism for criminal legal risk prevention and rights protection to avoid arbitrary judicial convictions and heavy punishments for misdemeanors.
In Sun Chunyu's view, to prevent criminal risks, it is still necessary to practice both internally and externally, and focus on the internal.
From the external environment, the incentives for private entrepreneurs to commit crimes have basically been improved and eliminated, so the future should focus on internal mechanism construction.
From a conscious point of view, private entrepreneurs must be aware of the extreme severity of criminal risks and not touch the bottom line. In addition, they must establish a complete criminal risk prevention and control mechanism, and use big data, artificial intelligence and other means to sort out the risk points of enterprises.
Sun Chunyu believes that it is necessary to strengthen the internal control, review, and anti-corruption construction of enterprises to eliminate opportunities for criminal risks. In addition, it is necessary to strengthen punishment and accountability. It is not necessary to emphasize cooperation because the enterprise is operated in a family, family, friend, and partnership type. , Underestimate accountability, include the anti-corruption of private enterprises into the national anti-corruption plan, improve the corresponding criminal laws, plug loopholes, tighten the legal net, and strengthen the guidance of corporate criminal compliance.
“In terms of legislation and justice, an incentive and guidance mechanism for private enterprises’ criminal compliance should be established.” Han Yi said, “Future criminal legislation or related judicial interpretations will have criminal responsibility for private enterprises that have established a better criminal compliance system. Judicial rewards and positive evaluations should be given to the determination of existence and size, which will force private enterprises to take the initiative to improve their governance structure and the criminal compliance system. The degree of criminal compliance can constitute a criminal defense. The reason should even have a place in the elements of sentencing, so that private enterprises with a better criminal compliance system can receive corresponding leniency, including convictions, or conversion of serious crimes into misdemeanors."
Xie Pengcheng, director of the Institute of Prosecutorial Theory of the Supreme People’s Procuratorate, believes that criminal justice is an important lever for advancing the construction of a compliance system. In my country, the establishment of corporate compliance systems is included in the criminal justice system as an important plot for conviction and sentencing. This is the general trend. Must do.
"First of all, the construction of the corporate compliance system must be included in the system of lenient admissions of guilt and punishment. Enterprises that promise to build a compliance system or rectify compliance can receive lighter or mitigated punishments, such as disapproval of arrest, non-prosecution, and lighter sentences. Secondly, it is necessary to explore the establishment of a conditional non-prosecution system for corporate crimes. For minor corporate crimes, a compliance system construction or compliance rectification commitment can be given one to two years of compliance inspection period. If the compliance system construction meets the standards, The decision not to prosecute can be made." Xie Pengcheng said.
In Xie Pengcheng’s view, this is not only a greater effort to protect the legitimate rights and interests of private enterprises and entrepreneurs, to serve the need to ensure the sustained and healthy development of the private economy, but also to reform the criminal justice system, and to modernize the governance system and governance capabilities of the country and enterprises. need.
Shi Yanan, director of the Criminal Law Science Research Center of Renmin University of China, told the reporter of Rule of Law Daily that in the past few decades, China's private economy has grown from scratch, from small to large, and from weak to strong, and has become an important part of China's economy. .
However, from a practical point of view, there are still many problems in the protection of the private economy. The criminal protection of the private economy requires the joint advancement of the criminal law circle, the judicial practice circle and the business circle.