企业合规制度中认罪问题研究

在企业合规制度中,涉罪企业认罪既是启动合规考察的前提条件,亦能体现检察机关提前采取“准刑罚”措施的正当性。围绕中小微企业这一类主要适用对象,企业认罪的实践困境包含直接责任人员未参与罪名合意、认罪真实性与自愿性难以保障、检察机关接触企业认罪较晚等。究其原因,主要为“认事”与罪名合意之人发生分离、合规不起诉的优待及于直接责任人员、公诉裁量权较大且外在监督不足等。同时,从试点情况看,企业认罪的具体表现形式为第三方组织审查和建议采取何种合规计划、合规考察合格后检察机关是否不起诉等提供了参考和依据。面对诸多实践困境,应从赋予两类代表人员相关性权利、对直接责任人员慎用不起诉、逐步完善企业合规规则、强化公诉裁量权的外部“风控”因素四方面加以改进。

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

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 takequasi-penalmeasures 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 theadmission of actfrom 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.