涉案企業合規中的“交涉性辯護”

Negotiation Defense in Compliance of Enterprises Involved in Cases

作為“交涉性辯護”的新發展，合規交涉中的律師辯護在辯護目標、取證範圍、交涉籌碼等方面都具有一定的特殊性，並因此對辯護律師有效維護當事人合法權益的專業能力和業務水平提出了新要求。作為涉案企業或“企業家”聘請的辯護人，律師在涉案企業合規中至少可以發揮以下三個方面的作用：一是申請啟動合規考察；二是協助展開合規整改；三是促使兌現合規激勵。但是，由於“交涉性辯護”本身的先天不足，加上涉案企業合規改革中存在著合規考察程序啟動上的裁量性、企業合規從寬處理責任人的爭議性、企業合規從寬激勵的不確定性等問題，使得合規交涉中的律師辯護能否取得“好結果”存在很大的不確定性。要保障涉案合規交涉取得更好的效果，尤其是從制度發展的角度而言，未來應從建立合規考察申請與答覆機制、預先確定合規從寬幅度、健全合規證明責任與有效標準等幾個方面進行制度完善。

The full implementation of the leniency system of pleading guilty and accepting punishment provides defendant's agent with the opportunity to use ''pleading guilty'' as a bargaining chip to persuade the procurator to give the defendant a lenient punishment, thus giving birth to the relatively new defense strategy of ''negotiation defense''. The vigorous promotion of the reforms of the corporate compliance involved in the case has led to the introduction of compliance incentive mechanisms into Chinese criminal procedures, thus providing important institutional support for the development of ''negotiation defense''. The ''negotiation defense'' in the corporate compliance not only has similarity of ''negotiation defense'', but also has particularities in terms of defense objectives, evidence collection scope, and negotiation chips. First, interms of defense goals, it is oriented to ''compliance and no prosecution''. Second, in terms of the scope of evidence collection, it is based on social investigations of the corporations involved. Third, in terms of bargaining chips, the core is that the corporations have played an active role in effective compliance. In the process of handling corporate compliance cases, defendant's agent can play an important role in three aspects: applying to judicial authorities to initiate compliance inspections, assisting compliance consultants to carry out compliance rectification, and urging the judiciary authorities to honor compliance incentives. To this end, defendant's agent should not only actively communicate, negotiate and dialogue with the judiciary authorities to persuade the latter to include the corporations involved in the compliance investigation, but also recommend suitable compliance consultants to the corporations involved when necessary and assist the compliance consultants in carrying out compliance self-examination can help corporations involved analyze the causes of crimes, awaken the compliance awareness of entrepreneurs, and increase the importance of entrepreneurs in compliance rectification work. It can even help compliance consultants gain the trust and work support of entrepreneurs, etc. In addition, defendant's agent often need to conduct traditional criminal defense work simultaneously with compliance negotiations to persuade the judiciary authorities to treat their client with maximum leniency. In those cases where criminal executions are connected, defendant's agent can also communicate with the procurator to formulate and issue procuratorial suggestions to ensure that compliance and rectification results become an important basis for the administrative agencies to treat the parties leniently. When the ''negotiation defense'' in the leniency system for guilty pleas and punishments faces many constraints in the development process due to the strength of the negotiation object, the lack of negotiation rules, and the low negotiation ability, it is inevitable for defendant's agent to also negotiate for compliance. Various obstacles arise. In particular, defendant's agent in compliance negotiations still faces institutional dilemmas such as the discretion in starting compliance inspection procedures, the controversial nature of the person responsible for corporate compliance leniency, and the uncertainty of incentives for corporate compliance leniency. Therefore, in order to fully guarantee the negotiation defense in the compliance of the corporations involved in the case, so as to achieve better compliance negotiation effects, especially from the perspective of system development, the future should start from the establishment of a compliance inspection application and response mechanism, predetermining the scope of compliance leniency, improving compliance certification responsibilities and effective standards.