行政機關推進合規管理的三種方式

Three Methods for Administrations to Promote Compliance Management

相對於企業自主性合規而言，企業在行政機關推動下所實施的合規管理體系建設具有獨特的制度優勢。目前，行政機關推進企業合規管理的方式主要有行政合規指導、行政合規強制和行政合規激勵等三種方式。其中，行政機關通過發佈合規指引等方式為企業合規管理提供指導，已經得到普遍的推行，但還存在著缺乏針對性、缺少有效合規標準以及沒有制度保障等方面的問題。行政合規強制制度在一些特定領域中得到初步適用，但還存在碎片化和分散化的問題，沒有形成體系化的合規強制機制。行政合規激勵機制儘管在證券、反壟斷等監督領域得到建立，但適用案例較少，所包含的“以合規換取寬大處理”的制度特徵並不明顯。未來，根據“預防性監管”和“協商性監管”的理念，在法律中注入更多行政合規指導、強制和激勵的制度因素，為行政機關推進企業合規管理提供更大授權和更大空間，這將是一項值得深入研究的重大法律課題。

Compared with the independent compliance of enterprises, the construction of compliance management system implemented by enterprises promoted by administrative authorities has unique institutional advantages. At present, there are mainly three ways for administrative authorities to promote enterprise compliance management: administrative compliance guidance, administrative compliance enforcement and administrative compliance incentives. Among them, ''compliance guidance'' is an activity for administrative authorities to provide administrative guidance for relevant enterprises to establish or improve compliance management system by issuing ''compliance guidelines'' or ''compliance measures''. This kind of compliance guidance is provided by the administrative organ to ensure that the enterprise achieves the goal of effectively preventing the occurrence of illegal and illicit behaviors, and guides the enterprise to establish a set of management system aimed at preventing, monitoring or responding to compliance risks. At present, the provision of guidance on compliance management by administrative authorities through the issuance of compliance guidelines and other means has been generally implemented, but there are still problems in terms of lack of relevance, lack of effective compliance standards and lack of institutional safeguards. Compulsory compliance is another way in which administrative authorities promote the establishment of compliance systems by enterprises. Through the implementation of a ''mandatory compliance system'', administrative authorities oblige enterprises that meet the legal requirements to establish a compliance management system, and pursue administrative liability for enterprises that refuse to fulfill their obligations. At present, this system has been initially applied in some specific areas, but there are still problems of fragmentation and decentralization, and no systematic compliance enforcement mechanism has been formed. Administrative authorities have introduced the way of ''compliance reward'' through the compliance incentive mechanism, that is, to reward leniency administrative treatment for the illegal enterprises that carry out effective compliance rectification, establish effective compliance programs and achieve the effect of effectively preventing similar violations, in order to stimulate the enterprise's motivation to engage in the construction of the compliance system, and attract more enterprises to establish compliance management systems. At present, although the administrative compliance incentive mechanism has been established in securities, anti-monopoly and other supervision fields, there are few applicable cases, and the institutional characteristics of ''exchanging compliance for leniency'' are not obvious. In terms of administrative compliance guidance, administrative authority should guide enterprises to establish a compliance system in accordance with the ''risk-oriented compliance model'' and, with the help of relevant industry associations , strengthen effective compliance guidance for enterprises engaged in specific industries, issue practical criteria for evaluating the effectiveness of compliance programs, and implement more scientific methods for evaluating the effectiveness of compliance. In terms of mandatory administrative compliance, it is necessary to consider gradually introducing a comprehensive mandatory compliance mechanism in enterprises that have reached a certain scale or have significant compliance risks, strengthening the accountability of enterprises that do not fulfill their compliance obligations, and establishing a qualification certification mechanism for qualified enterprises in compliance construction. In terms of administrative compliance incentives, it is necessary to establish a more systematic pre-compliance incentive mechanism, in-event compliance incentive mechanism and ex-post compliance incentive mechanism.