論涉案企業合規中檢察裁量權的規制

涉案企業合規改革雖有法律依據和理論根基；也取得了較好的政治、法律、社會和經濟效果；但因其引發的質疑卻從未停止過。究其原因；很大程度上是因為作為改革依託的檢察裁量權得以擴張；且在行使中存在一些有爭議的做法。檢察機關儘管在改革規劃中也設置了層報省級檢察機關審批、第三方監督評估機制、合規驗收聽證程序等權力制約機制；但尚不足以有效防止涉案企業合規中檢察裁量權的濫用；也無法消除人們對其平等性、公正性的疑慮。為確保此項改革的持續深化；進而確保已取得的積極成果能為《刑事訴訟法》第四次修改所接納；檢察官需要遵循客觀公正原則；並將公共利益衡量原則和比例原則作為企業合規案件辦理中裁量權行使的基礎。在具體路徑上；需要從辦案模式選擇、整改程序啟動、合規監督考察、企業合規激勵等企業合規案件辦理的關鍵環節入手；通過立法規制、檢察內部規制、法院司法審查規制、社會力量規制等多條路徑；對涉案企業合規中的檢察裁量權進行有效規制。

The compliance reform of enterprises involved in legal cases, although based on legal foundations and theoretical underpinnings and having achieved commendable political, legal, social, and economic outcomes, has never ceased to face skepticism. A significant reason for this is the expansion of prosecutorial discretion that the reform relies on, along with some controversial practices in its exercise. Despite the prosecutorial authorities setting up a hierarchy of approval mechanisms that include reporting to provincial-level prosecutorial offices, third-party supervision and evaluation mechanisms, and compliance acceptance hearing procedures in the reform plan, these are not sufficient to effectively prevent the abuse of prosecutorial discretion in enterprise compliance, nor to dispel doubts about its equality and fairness. To ensure the continued deepening of this reform and to ensure that the positive results already achieved are accepted by the fourth amendment of the Criminal Procedure Law, it is not only necessary for prosecutors to follow the principle of objectivity and fairness and to take the public interest measurement principle and the proportionality principle as the basis for the exercise of discretion in handling corporate compliance cases. It is also essential to start from key aspects of handling corporate compliance cases such as the selection of case handling models, the initiation of rectification procedures, compliance supervision and inspection, and incentives for corporate compliance. Through legislative regulation, prosecutorial internal regulation, judicial review by courts, and regulation by social forces, effective regulation of prosecutorial discretion in corporate compliance can be achieved.