Be a good "old mother" in corporate compliance
Prosecutorial organs have taken solid steps to serve the development of private enterprises
□ reporter Zhang Hao
"Fair rule of law is the most fertile soil for the development of corporate competition, and the brightest sunshine!" On September 3, the 3rd Private Economic Rule of Law Construction Summit was held in Beijing, said an entrepreneur representative.
Prosecutors have been listening to such a voice and working hard for it.
Tracing the footprint of the procuratorial work in recent years, it is not difficult to find an important cut in its service to the overall situation, which is to work hard to create a fair and competitive legal environment for enterprises through performing their duties and handling cases, and to ensure the legal and equal protection of private enterprises.
Leniency in accordance with the law is not "one leniency"
Private enterprises can rest assured that they can develop better without guaranteeing the rule of law.
A set of case-handling data released at the meeting demonstrated the determination and responsibility of the procuratorial organ to serve the development of private enterprises.
The procuratorial organs, in conjunction with the public security departments, have carried out a new round of special clean-ups of private enterprises that have neither withdrawn nor transferred for review and prosecution, and have been put on hold for a long time. As of the end of June this year, 6,099 cases have been investigated and 4,830 cases have been cleaned up; Actively promote the substantive resolution of administrative disputes involving private enterprises. Since last year, a total of 493 cases have been resolved, and efforts have been made to close the case; in May this year, a special supervision pilot was deployed to allow corporate personnel in community corrections to leave for short-term production and business activities in other places. ; Issue 7 batches of 31 guiding cases and typical cases to protect the development of private enterprises to guide case handling, warn against violations, and strengthen the rule of law.
In the first half of this year, the non-arrest rate and non-prosecution rate of non-state-owned companies, enterprises, and public institutions by procuratorial agencies nationwide were 8.5 percentage points and 9.7 percentage points higher than the overall criminal crimes.
This data reflects a procuratorial policy that has been firmly implemented by the procuratorial organs in recent years: it applies to persons in charge of private enterprises suspected of committing crimes "if they are not arrested according to law, not prosecuted, and those who are not sentenced to actual sentences. Probation and sentencing recommendations".
This policy is precisely the refinement of the national criminal justice policy of "less arrests, prosecution and detention" in the service and protection of the development of the private economy.
Regarding this kind of procuratorial policy, there have also been questions: Is it “extra-legal” for private enterprises to “open one side” on the Internet, and will it cause new “inequality”?
The corporate compliance system introduced by the procuratorial organs in due course has dispelled people's doubts: Leniency in accordance with the law is not "a leniency."
Love is not spoiling, but strict control is true love.
Corporate compliance, strict management and love are integrated
For people in the business world and those familiar with procuratorial work, corporate compliance that combines strict management and love is already familiar to everyone.
In March 2020, the Supreme People’s Procuratorate launched a pilot program for the compliance reform of the companies involved in the case, and launched the first phase of the pilot program for corporate compliance reform in six primary-level procuratorates in Shanghai, Jiangsu, Shandong, and Guangdong.
In March 2021, the Supreme People’s Procuratorate expanded the scope of the pilot program and actively promoted it in 27 municipal procuratorates and 165 primary-level procuratorates in 10 provinces including Beijing, Shanghai, Jiangsu, and Zhejiang. As of August, a total of 206 corporate compliance cases were handled. .
Some procuratorial organs in non-pilot provinces have also proactively carried out work related to corporate compliance reform within the legal framework based on local conditions.
What is the significance of corporate compliance to the healthy development of the company?
The case is the best interpretation.
In Shenzhen, Guangdong, a company was in trouble.
The company was transferred for review and prosecution on suspicion of smuggling general goods for importing durians due to low prices.
The Shenzhen Procuratorate found that the company is a group enterprise with 5,000 employees, and its business is developing well.
For a long time, it has been a formal customs declaration, and low-cost customs declaration is an occasional phenomenon.
After the incident, the company's desire for compliance and rectification was very strong.
After investigation and verification and soliciting opinions, the procuratorial organ has decided to pilot the compliance of its applicable enterprises.
In response to the suspected smuggling crime, the company involved has set up a compliance commissioner to conduct daily compliance control in terms of qualifications, funds, foreign exchange, and taxation.
In addition, the company also provides purchase prices to the customs from time to time to cooperate with administrative supervision.
How to ensure the "true" compliance of an enterprise is a key issue that must be resolved with great efforts.
In the above cases, in order to ensure the independence and objectivity of third-party supervision and evaluation, the Baoan District Procuratorate of Shenzhen applied to the Baoan District Compliance Committee for supervision and inspection of the enterprises involved in the case.
The Bao'an District Compliance Committee comprehensively considered the suspected crimes of the case and the type, scale, and main business of the company involved, and randomly selected personnel from the professional directory database, and finally formed a group of 7 people including corporate compliance experts and practicing lawyers. Third-party supervision and evaluation organization.
The formation of such a rigorous and professional third-party supervision and evaluation organization ensures the effectiveness of compliance rectification.
Wang Zhile, vice chairman of the National Corporate Compliance Committee, head of the Shenzhen Compliance Studio, and director of the Beijing New Century Multinational Corporation Research Institute In terms of mechanism and compliance culture, a relatively effective management system has indeed been established.
Focus on implementing a third-party supervision and evaluation mechanism
Only with supervision can the implementation be promoted.
Promoting the pilot work of the compliance reform of the enterprises involved in the case focused on implementing the third-party supervision and evaluation mechanism and doing a good job in the "second half of the article."
For different companies and suspected of different crimes, the "regulations" of compliance supervision should be individualized.
After the "regulation" is determined, the third-party organization should require the company involved in the case to submit a compliance plan and promise to complete the time limit; after the compliance plan is reviewed and confirmed, it will be implemented within the compliance inspection period.
The third-party organization conducts supervision and evaluation, focusing on verifying whether the "regulations" promised by the enterprises involved are in place.
During the compliance inspection period, third-party organizations may regularly or irregularly inspect and evaluate the implementation of the company's compliance plan.
After the expiration of the compliance inspection period, the third-party organization shall submit the compliance inspection report together with other compliance materials to the procuratorial organ as an important reference for case handling.
It is believed that the enterprises involved in the case have fulfilled their rectification commitments, and the procuratorial organs will handle the case with lenient treatment in accordance with the law.
If a decision is made not to prosecute the enterprise involved, it is also necessary to promote the integration of enterprise compliance with necessary economic and administrative penalties, so that the illegal enterprise involved in the case should be punished.
It is believed that the enterprise involved in the case has not effectively rectified or the effect of rectification is not good, and the procuratorial organ should make a decision to prosecute the case in accordance with the law, and at the same time put forward corresponding sentencing recommendations to form a deterrent and warning.
The procuratorial organ has made unremitting efforts to promote the establishment of a third-party mechanism.
In June of this year, the Supreme People’s Procuratorate, together with the Ministry of Justice, the Ministry of Finance, the Ministry of Ecology and Environment, the State-owned Assets Supervision and Administration Commission of the State Council, the State Administration of Taxation, the State Administration of Market Supervision, the All-China Federation of Industry and Commerce, and the China Council for the Promotion of International Trade jointly issued the Guidance on Establishing a Third-Party Supervision and Evaluation Mechanism for Enterprise Compliance Opinions (for Trial Implementation), implement the third-party mechanism, and all parties have assumed the joint responsibility of the "old mother uncle" and "mother family".
With the active efforts of procuratorial organs and the support and cooperation of relevant parties, the third-party mechanism for corporate compliance has yielded fruitful results-on the day of the summit, with the National Committee of the Chinese People’s Political Consultative Conference, the Supreme People’s Procuratorate and the Ministry of Justice, the Ministry of Finance, the Ministry of Ecology and Environment, and the State-owned Assets Supervision and Administration Commission of the State Council. The commission and other nine department leaders pressed the start button to announce the formal establishment of the management committee of the third-party supervision and evaluation mechanism for the enterprises involved in the case.
On the day of the summit, the management committee held the first joint meeting to study and discuss the third-party mechanism professionals’ selection and appointment management measures, third-party mechanism guidance implementation rules and other documents, to jointly refine the actual operating mechanism, and further clarify how to regulate the third-party mechanism. Work.
The corporate compliance management system has taken another important step of substantial significance, which is also another solid step taken by the procuratorial agency to serve the development of private enterprises.