企業違法犯罪的協同共治式行政監管研究

通過行政監管預防企業的違法犯罪，是當今世界其他國家和地區的通行做法。黨中央和國務院反復強調要通過加強對企業的事前、事中、事後的協同共治式行政監管來預防企業的違法犯罪。但目前學界更多的是關注如何查處已然的違法犯罪，且並未詳盡評介國外關於企業在監管階段的經營行為與責任減免的內在關係。要完善“抓前端、治未病”的協同共治式行政監管，應該以責任主義為立足點，從學理上闡明企業配合監管的積極性與主動性應當成為判斷其主觀過錯程度並據以減免責任的依據，從而完善行政機關、司法機關與企業多元主體參與的協同共治式監管。在制度層面，《刑法》和《行政處罰法》應該確立責任主義，明確規定監管過程中企業的積極性和主動性是從輕和減免責任的依據;通過“行刑”反向銜接實行個案辦理與行業預防延伸;從有利於查處企業違法犯罪的角度出發，應該健全“行刑”正向銜接機制。

Preventing corporate misconduct through administrative regulation is a prevailing practice globally. The CPC Central Committee and the State Council have repeatedly emphasized the necessity of preventing corporate offenses by strengthening collaborative governance-style administrative regulation covering ex-ante, interim, and ex-post stages. However, current academic research predominantly focuses on the investigation and punishment of committed crimes, failing to provide a comprehensive evaluation of the intrinsic relationship between corporate operational behavior during the regulatory phase and the mitigation or exemption of liability in foreign jurisdictions. To perfect the collaborative administrative regulation aimed at“addressing issues at the source and preventing potential risks,”it is essential to ground the approach in the principle of culpability. Theoretically, it must be clarified that a corporation's proactivity and initiative in cooperating with regulation should serve as the basis for assessing its subjective fault and determining liability reduction. This will enhance the collaborative governance model involving administrative organs, judicial organs, and enterprises as multi-stakeholders. At the institutional level, the Criminal Law and the Administrative Penalty Law should establish the principle of culpability, explicitly stipulating that corporate proactivity during the regulatory process constitutes grounds for leniency or exemption. Furthermore, the system should implement the extension from individual case handling to industry-wide prevention through the reverse linkage between“Administrative Law and Criminal Law”; meanwhile, from the perspective of facilitating the investigation of corporate crime, the mechanism of forward linkage between“Administrative Law and Criminal Law”should be improved.