意大利企业合规制度的全面解读及其启示

意大利是较早建立企业合规体系,法治经验相对成熟的国家。第231号法令跨越意大利《宪法》第27条的障碍,规定了判断企业责任的主客观标准,将企业责任建立在组织性罪过基础之上。企业免责的唯一途径是构建有效合规计划。如果企业能够证明在犯罪发生之前已采用并有效地实施了组织、管理和控制模式,则可以免除责任。该法令实施20年来,通过持续性革新,将反腐败合规计划由公共机构扩展至私营企业,规定合规计划中辩诉交易的适用条件,引入配额制的经济制裁手段,实现了自我完善。我国的企业合规改革刚刚起步,应当重视企业刑事合规的法治化,明确单位犯罪的归责基础,单位犯罪治理应当由事后惩治模式向事先预防的企业合规模式转变,立法上应当增设配额罚金制和褫夺资格处罚,以建立相对完善的、符合我国国情的企业合规制度。

A Comprehensive Interpretation of Italian Corporate Compliance System and Its Implications

Italy is an earlier country to establish the corporate compliance system and has more mature legislative experience.The No.231 Act of Italy transcended the obstacles of Article 27 of the Italian Constitution and finally was adopted.This Act stipulates the subjective and objective standards of corporate responsibility and establishes corporate responsibility based on organizational fault.The only way for the corporate to avoid assuming its responsibility is to build an effective corporate compliance plan.If the corporate can prove that it has adopted and has effectively implemented the organization,management and control mode before the crime,it can be exempted from legal responsibility.In the 20 years since its implementation,the No.231 Act has achieved itself-improvement by expanding the anti-corruption corporate compliance plan from public institutions to private enterprises through continuous innovation,stipulating the applicable conditions of plea bargaining in the compliance plan,and introducing the new economic sanctions such as quota etc.The corporate compliance reform in China has just started.We should pay more attention to the legalization of criminal corporate compliance,clarify the imputation basis of corporate crime,change the governance of corporate crime from the punishment mode afterwards to the corporate compliance mode of prevention in advance,introduce the new fine penalty such as quota and add a series of disqualification punishments,so as to establish a relatively perfect corporate compliance system in line with Chinese national conditions.