企業合規制度中認罪問題研究

Research on Admission of Guilty in Non-prosecution Corporate Compliance System

在企業合規制度中，涉罪企業認罪既是啟動合規考察的前提條件，亦能體現檢察機關提前采取“准刑罰”措施的正當性。圍繞中小微企業這一類主要適用對象，企業認罪的實踐困境包含直接責任人員未參與罪名合意、認罪真實性與自願性難以保障、檢察機關接觸企業認罪較晚等。究其原因，主要為“認事”與罪名合意之人發生分離、合規不起訴的優待及于直接責任人員、公訴裁量權較大且外在監督不足等。同時，從試點情況看，企業認罪的具體表現形式為第三方組織審查和建議采取何種合規計劃、合規考察合格後檢察機關是否不起訴等提供了參考和依據。面對諸多實踐困境，應從賦予兩類代表人員相關性權利、對直接責任人員慎用不起訴、逐步完善企業合規規則、強化公訴裁量權的外部“風控”因素四方面加以改進。

In non-prosecution corporate compliance system, the admission of guilty by the company is both a prerequisite for initiating a compliance supervision program against the company and the basis of legitimacy for procuratorial authorities to take 'quasi-penal' measures before filing criminal charges. In practice, the dilemmas surrounding its application to micro, small and medium-sized enterprises include the lack of participation of directly responsible persons in admission of guilty, the difficulty of ensuring the authenticity and voluntariness of the admission, and the late access of the procuratorial authorities to the admission. The reasons for such dilemmas include the separation of the 'admission of act' from the person who has mens rea, the extension of benefits of non-prosecution to persons directly responsible for the crime, the excessive discretionary power of the procuratorial authorities and the lack of external supervision of it. Moreover, from the experience of the non-prosecution pilot program, the admission of guilty by the company mainly functions as a reference and basis for third-party organizations to review and recommend what kind of compliance program to implement, and for procuratorial authorities to decide whether they should drop prosecution if the company passes the compliance test. Faced with many practical difficulties, it ought to grant relevant rights to two types of representatives, to cautiously apply non-prosecution to persons who are directly responsible, to gradually complete the supply of non - prosecution corporate compliance rules, and to strengthen the external “risk control”, namely the supervision of procuratorial discretionary power.