Detailed Implementation Measures for the "Guiding Opinions on the Establishment of a Third-Party Oversight and Assessment System for the Compliance of Enterprises Involved in Criminal Cases"

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These detailed implementation measures are drafted in consideration of actual working conditions so as to thoroughly study Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, fully implement Xi Jinping thought on rule of law; to completely, accurately, and fully implement the new concept of development; to earnestly implement the "Guiding Opinions on the Establishment of a Third-Party Oversight and Assessment System for the Compliance of Enterprises Involved in Criminal Cases (Provisional) (hereinafter "the Guiding Opinions") issued by the Supreme People's Procuratorate, Ministry of Justice, Ministry of Finance, Ministry of Ecology and the Environment, State Council State-owned Assets Supervision and Administration Commission, State Administration of Taxation, State Administration for Market Regulation, All-China Federation of Industry and Commerce, and Council for the Promotion of International Trade; to advance pilot efforts on the enterprise compliance reform, to regulate management efforts on the selection of professionals for the third-party mechanisms for oversight and assessment of enterprises involved in cases (hereinafter third-party mechanism professionals), to safeguard the effective operation of the third-party oversight and assessment mechanism (third-party mechanisms) to regulate the commission for the management of the third-party mechanism for the oversight and assessment of enterprises involved in cases (hereinafter the commission for the management of the third-party mechanism) and the third-party oversight and assessment mechanism (hereinafter third-party mechanism), to safeguard the effective operation of the third-party oversight and assessment mechanism (third-party mechanism).

Chapter I: The Composition and Duties of the Commission for Management of the Third-Party Mechanism

Article 1: The commission for the management of the third-party mechanism is the deliberation and coordination body that is to undertake duties such as big-picture guidance, specific management, routine oversight, and planning and coordination for the third-party mechanism; that is to ensure that the third-party mechanism operates lawfully, orderly, and regularly; and that the third-party oversight and appraisal organizations (hereinafter third-party organizations) and their members perform their duties in accordance with law.

Article 2: The member units of the commission for the management of the third-party mechanism include departments such as the Supreme People's Procuratorate, Ministry of Justice, Ministry of Finance, Ministry of Ecology and the Environment, State Council State-owned Assets Supervision and Administration Commission, State Administration of Taxation, State Administration for Market Regulation, All-China Federation of Industry and Commerce, and China Council for the Promotion of International Trade, and other member units may be added as needed for work.

Article 3: The Commission for the Management of the Third-Party Mechanism is to perform the following duties:

(1) Research and draft normative documents related to the third-party mechanism;

(2) Research and debate major legal and policy issues involving the third-party mechanism;

(3) Research and draft entry conditions and management measures for a professional personnel directory for the third-party mechanism;

(4) Research and draft work assurances and incentive systems for third-party organizations and their member personnel;

(5) Organize the carrying out of routine oversight and inspection patrols of pilot site management commissions for the third-party mechanism and third-party organizations;

(6) Coordinate with relevant member units to give operational guidance in the enterprise compliance area to the All China Lawyers Association, China Certified Accountants Association, China Enterprise Confederation, China Association of Certified Tax Agents, China Council for the Promotion of International Trade National Enterprise Compliance Committee (China Council for the Promotion of International Trade Commercial Law Service Center) and other industry associations, chambers of commerce, and institutions, researching and drafting standards for compliance monitoring for enterprises involved in criminal cases;

(7) Planning and coordinating other efforts in the third-party mechanism.

Chapter II: The Duties of the Commission for the Management of the Third-Party Mechanism Joint Conference

Article 4: The commission for the management of the third-party mechanism is to establish a joint conference mechanisms, using the joint conference format to research and draft major normative documents, research and debate major issues of law and policy, research and determine work priorities and measures for different phases, coordinate and consult on major matters, and promote the commission's effective performance of duties and fulfillment of responsibilities.

Article 5: The Joint Conference is to have the responsible comrades of the Supreme People's Procuratorate, State Council State-owned Assets Supervision and Administration Commission, Ministry of Finance, and All-China Federation of Industry and Commerce serve as hosts, and the relevant responsible persons of the commission's other member units are to serve as members of the joint conference. Where the membership of the joint conference needs to be adjusted due to changes in work, the members' units are to raise the matter and the joint conference is to confirm it.

Article 6: In principle, the joint conference is to be convened once each half year, and may also be temporarily convened as needed for work. The Supreme People's Procuratorate is to convene it for topics involving the enterprise compliance reform pilot work or major laws and policies; the All-China Federation of Industry and Commerce is to convene for topics on the routine work of the commission for the management of the third-party mechanism and private enterprises, and the State Council State-owned Assets Supervision and Administration Commission and Ministry of Finance are to convene it for topics involving state-owned enterprises. Based on the topic, the hosts may invite other departments, units, and expert scholars to participate in the meeting.

Article 7: The joint conference is to clarify the topics agreed to at the meeting in the form of minutes, print and distribute them to all member units of the commission for the management of the third-party mechanism and other relevant parties for implementation, report major matters for approval in accordance with procedures, and periodically report on the implementation to the joint conference.

Article 8: The responsible comrades from the relevant divisions of each member unit of the commission for the management of the third-party mechanism are to serve as the liaisons for the joint conference. Before the joint conference convenes, a liaison meeting shall be convened to research and discuss the topics for the joint conference, matters that need to be determined by the joint conference, and other relevant work.

Based on the functions of their unit, the liaisons shall perform the following duties:

(1) Coordinate work communication between that unit and other member units;

(2) Organize the research and drafting of related normative documents, research and debate related law and policy issues, and submit comments and recommendations on related matters or topics;

(3) Organize research topics that the unit needs to submit to the joint conference for discussion;

(4) When there are reasons that joint conference members cannot participate in the conference, participate in the conference and express opinions on their behalf;

(5) Organize the implementation of the works tasks designated, or matters agreed upon, by the joint conference.

Article 9: The responsible comrades of each member unit of the commission for the management of the third-party mechanism for the relevant department level are to serve as the joint conference liaisons, be responsible for routine contact and communication, and undertake matters that members of the joint conference assign to liaisons.

Chapter III: The Duties of the General Office of the Commission for the Management of the Third-Party Mechanism

Article 10: A general office is to be established under the commission for the management of the third-party mechanism, responsible for undertaking the commission's routine work. The general office is to be set up under the All-China Federation of Industry and Commerce and the responsible comrade for the relevant departments of the All-China Federation of Industry and Commerce is to serve as the office director, the responsible comrades for the relevant departments of the Supreme People's Procuratorate, State Council State-owned Assets Supervision and Administration Commission, and Ministry of Finance are to serve as the office's deputy directors.

Article 11: The office of the commission for the management of the third-party mechanism is to perform the following duties:

(1) Coordinate and urge each member unit in implementing the work tasks appointed, and matters agreed upon, by the joint conference;

(2) Collect and organize the topics submitted by each member unit for research and discussion by the joint conference, and be responsible for the organization and preparation work for the joint conference and liaison meetings;

(3) Coordinate and guide the joint conference liaisons in carrying out routine contact and communication work;

(4) Be responsible for establishment and selection, routine management, and dynamic adjustment of the national level directory of professionals for the third party mechanisms, and establish a list of prohibited persons and punishment measures;

(5) Organize the carrying out of routine oversight and inspection patrols of pilot site management commissions for the third-party mechanism and third-party organizations;

(6) Undertake other work assigned by the commission for the management of the third-party mechanism and its joint conference.

Article 12: The general office of the commission for the management of the third-party mechanism shall employ effective measures to establish and complete the commissions' mechanisms for joint surveys, information sharing, case guidance, and publicity and training, and strengthen contact with the All China Lawyers Association, China Association of Certified Accountants, China Enterprise Confederation, China Association of Certified Tax Agents, the National Enterprise Compliance Committee of the China Council for the Promotion of International Trade (The China CCPIT Commercial Law Service Center), and other industry associations, chambers of commerce, and institutions.

Article 13: The office of the commission for the management of the third-party mechanism is to lead the establishment of the inspection patrol group, inviting people's congress delegates, political consultative conference members, people's supervisors, retired judges, retired procurators, as well as accountants, auditors, lawyers, and expert scholars from fields related to compliance to serve as members of the inspection patrol group, and carry out unannounced spot checks and follow-up oversight of the performance of duties by pilot site commissions for the management of the third-party mechanism, related third-party organizations, and their members.

The office of the commission for the management of the third-party mechanism shall promptly report on the inspection patrol group's situation to the commission for the management of the third-party mechanism and its joint conference, and submit comments and recommendations for improving work.

Article 14: The office of the commission for the management of the third-party mechanism may promote the appointment of cadres for adjunct positions and exchanges between all member units and work communication units as needed for work, may explore systems by which staff of relevant units serve part-time as assistant procurators, and coordinate each member units' appointment of persons to participate in the office of the commission for the management of the third-party mechanism in light of the circumstances, to increase the level of professionalism and standardization in enterprise compliance work.

Article 15: The people's procuratorates and relevant units such as the State-owned Assets Supervision and Administration Commission, finance, and industry and commerce federation, shall consider actual local conditions in establishing the commission for the management of the third-party mechanism for that area, and in establishing a joint conference mechanism, with an office of the commission for the management of the third-party mechanism responsible for routine management.

Chapter IV: The nature of the third-party organizations

Article 16: The third-party organizations are temporary organizations selected and formed by the commission for the management of the third-party mechanism for pilot sites and are responsible for the investigation, appraisal, oversight, and monitoring of enterprises involved in cases' compliance pledges and their completion.

Article 17: The operation of third-party organizations shall follow the principles of compliance with laws and regulations, openness and fairness, objectivity and impartiality, professionalism, and efficiency.

Article 18: Pilot locations commissions for the management of the third-party mechanism are responsible for efforts such as the oversight, inspection, and monitoring of the performance of duties by the third-party organizations they selected and formed and their members, and are to ensure that they perform their duties in accordance with laws and regulations.

Chapter V: The Initiation of the Third-party Mechanism

Article 19: When people's procuratorates handle criminal cases involving enterprises, they shall pay attention to reviewing whether the requirements for applying the enterprise compliance pilot and the third-party mechanism are met, and promptly hear the comments of the enterprises and persons involved in the case. Where after review it is found that the application requirements are met, the local commission for the management of the third-party mechanism shall be consulted with on the initiation of the third-party mechanism.

Where the public security organs, disciplinary inspection organs, and other case-handling organs submit recommendations for application, the people's procuratorate is to address them with reference to the preceding paragraph.

Article 20: Where enterprises or persons involved in the case, their defenders, agents ad litem, or other relevant units and individuals submit an application to apply the enterprise compliance pilot and the third-party mechanism, the people's procuratorate shall lawfully accept it and conduct a review. Where after review it is found that the application requirements are met, the local commission for the management of the third-party mechanism shall be consulted with on the initiation of the third-party mechanism.

Article 21: After the commission for the management of the third-party mechanism receives a consultation request from the people's procuratorate, it shall comprehensively consider factors such as the alleged charges and complexity of the case and the type, scale, scope of operations, and main business of the enterprise involved in the case, to randomly select personnel by category to form a third-party organization from the directory of professionals.

Where the directory of professionals does not have professionals in a relevant field, the commission for the management of the third-party mechanism may invite relevant professionals to participate in the third-party organization by means of consultation invitation.

A single third-party organization is normally responsible for overseeing and assessing a single enterprise involved in a case. Where a single case involves multiple enterprises, or clear connections exist between enterprises involved in cases, the same third-party organization may be responsible for their oversight and assessment.

Article 22: Where the residence of enterprises or individuals involved in the case is not the same as the place where the case is being handled, the commission for the management of the third-party mechanism for the place where the case is being handled may entrust the commission for the management of the third-party mechanism for the residence of the enterprises or individuals involved in the case to select and form a third-party organization and carry out oversight and assessment, or may go through the remote assistance mechanisms of member units of the commission for the management of the third-party mechanism and the industry associations, chambers of commerce, and institutions that they belong to or are in charge of, to assist in carrying out oversight and assessment.

Article 23: Third-party organizations normally consist of 3-7 professional members, but third-party organizations for small and micro-enterprises may also consist of 2 professional members.

So long as no conflicts of interest exist and work quality can be ensured, the same professional may concurrently serve as a member of one or more third-party organizations.

As needed for work, the commission for the management of the third-party mechanism shall designate a responsible person for taking the lead in the third-party organization, and may also have the third-party organization democratically elect a responsible person and report to the commission for the management of the third-party mechanism for examination and approval.

Article 24: the commission for the management of the third-party mechanism shall publicly display the list of members of the third-party organization as well as the means for submitting comments and accepting societal oversight.

The display period is to be determined by the commission for the management of the third-party mechanism based on the circumstances, but must not be less than five working days. The display may be conducted through means such as the publication of a notice through news media or websites for the location of the enterprise involved in the case or that are related.

Article 25: Where the enterprises or persons involved in the case, or other relevant units and individuals, have objections to the membership of the third-party organization, or where members of the third-party organization apply for recusal, the commission for management of the third-party mechanisms shall promptly investigate and verify, and make adjustments in light of the circumstances.

Where, after the display period is complete, there are no objections or upon review, the objections are not sustained, the commission for the management of the third-party mechanism shall send the list of third-party organization members to be filed with the people's procuratorate responsible for handling the case Where the people's procuratorate finds that there are clearly improper situations in the membership, they shall promptly submit comments and recommendations to the commission for the management of the third-party mechanism, and the commission for the management of the third-party mechanism is to address it in accordance with the first paragraph of this article.

Article 26: Where after review of the third-party organization membership list sent by the commission for the management of the third-party mechanism, the people's procuratorate does not submit an opinion of disagreement, it shall be reported to the commission for the management of the third-party mechanism and the commission for the management of the third-party mechanism is to announce the establishment of the third-party organization.

During the period that the third-party organization exists, its membership normally must not change. Where a change is truly necessary, the commission for the management of the third-party mechanism shall address it in accordance with the provisions of these implementation rules.

Chapter VI: The Operation of the Third-party Mechanism

Article 27: After the third-party organization is formed, with the support and assistance of the people's procuratorate responsible for handling the case, it shall thoroughly learn about the situation of the enterprise involved in the case, earnestly assess weak links and outstanding problems that the enterprise has in the compliance area, reasonably determining the type of compliance plan to be applied by the enterprise, and doing a good job of advance preparation work.

As needed for work, the commission for the management of the third-party mechanism may appoint specialized personnel responsible for communication with the selected third-party organization, the people's procuratorate responsible for handling the case, and the enterprise involved in the case, to coordinate the handling of matters related to the initiation and operation of the third-party mechanism.

Article 28: Based on the circumstances of the enterprises involved in cases and as needed for work, third-party organizations shall request that the enterprises submit a single or multiple compliance plans, but this may be simplified for small and micro-enterprises.

The compliance plans submitted by enterprises involved in cases shall have full compliance as their goal and emphasize specific compliance items, primarily targetting issues in areas such as the enterprises' internal governance structures, rules systems, and personnel management that are closely related to the enterprises' alleged crimes, to construct effective compliance organization systems, improve relevant business management processes, complete compliance risk management reporting mechanisms, make up for vulnerabilities in the enterprise establishment and oversight management, and prevent the further occurrence of the same or similar violations and crimes.

Article 29: The third-party organization shall conduct a review of the compliance plan's feasibility, effectiveness, and comprehensiveness, emphasizing review of the following content:

(1) The likelihood of the enterprise involved in the case's completing the compliance plan, and the workability of the compliance plan itself;

(2) The efficacy of the compliance plan in preventing and correcting the criminal conduct that the enterprise is suspected of or similar violations and crimes;

(3) Whether the compliance plan covers weak points and obvious vulnerabilities in the enterprises' compliance;

(4) Other content that needs to be emphasized in the review, based on the enterprise's situation.

The third-party organization shall solicit comments on the compliance plan from the people's procuratorate responsible for handling the case, and comprehensively review the circumstance to submit comments for revisions and improvements to the enterprise involved in the case.

Article 30: Based on the specific circumstances of the case and the period for the enterprise to fulfil its pledges, and after having solicited comments from the people's procuratorate responsible for handling the case, the third-party organization shall reasonably determine the period for compliance monitoring.

Article 31: During the period of compliance monitoring, the third-party organization may regularly or irregularly conduct oversight and assessment of the enterprise's fulfillment of its compliance plan, and may request that the enterprise regularly report on the enforcement of the compliance plan in writing, and simultaneously send copies to the people's procuratorate responsible for handling the case.

Where the third-party organization discovers clear deviations or errors in the enterprise involved in the case's enforcement of the compliance plan, it shall promptly conduct guidance, submit corrective opinions, and report to the people's procuratorate responsible for handling the case.

Article 32: Third-party organizations that discover facts of the crimes or newly carried out criminal conduct by the enterprises involved in the case or their staffs that have not yet been learned of by the case-handling organs, they shall suspend the third-party oversight and assessment procedure and promptly report to the people's procuratorate responsible for handling the case.

After the people's procuratorate responsible for handling the case receives a report, it is to lawfully address it in accordance with the Criminal Procedure Law and relevant judicial interpretations.

Article 33: After the period for compliance monitoring is completed, the third-party organization shall comprehensively learn about, oversee, assess, and evaluate the completion of the compliance plan by the enterprise involved in the case, and draft a written compliance monitoring report.

The written compliance monitoring report shall include the following content:

(1) The enterprise involved in the case's fulfillment of compliance pledges and implementation of the compliance plans;

(2) The third-party organization's carrying out of understanding, oversight, assessment, and evaluation;

(3) The third-party organization's procedures, methods, and basis for carrying out oversight and assessment;

(4) Oversight and assessment outcomes, and comments and recommendations.

(5) Other issues that need to be explained.

Article 34: After all members of the third-party organization have each signed or affixed their seals, the written compliance monitoring report shall be sent to the commission for the management of the third-party mechanism that selected the third-party organization, the people's procuratorate responsible for handling the case, and other such units.

Where the members of the third-party organization have opinions dissenting from the written compliance monitoring report, they shall explain the comments and their basis in the report.

Article 35: The oversight and assessment methods provided for in articles 31 and 33 of these detailed implementation rules shall be closely related to the circumstances of the enterprises' suspected crimes, including, but not limited to, the following methods:

(1) Observation, visits, document review, file investigations, and knowledge tests;

(2) Conducting spot inspections of the enterprises' relevant business and management items in consideration of the frequency that they occur, their importance, and the level of compliance risk;

(3) Conducting a penetrating inspection of the enterprises' processes for handling operations in consideration of original documents, business handling tracking, operational management processes and so forth;

(4) Conducting comparison inspections of enterprises' systems and data through consideration of transaction data, operational receipts, work records, permissions, and parameter settings.

Article 36: Enterprises involved in cases shall cooperate with and facilitate the third-party organization's carrying out of inspections and assessments, truthfully complete and submit related documents and materials, and must no be misleading or deceitful.

Where enterprises involved in cases or their staff feel that the third-party organization or its members have improper conduct or are suspected of breaking the law or committing crimes in inspections and assessments, they may reflect the situation or submit an objection to the commission for the management of the third-party mechanism that selected the third-party organization, or submit a collateral appeal or accusation to the people's procuratorate responsible for handling the case.

Article 37: After the commission for the management of the third-party mechanism that selected the third-party organization and the people's procuratorate responsible for handling the case receive the compliance monitoring report sent by the third-party organization, they shall promptly conduct a review, and where both sides find that the third-party organization has completed its oversight and assessment work, the commission for the management of the third-party mechanism is to announce that the third-party organization is dissolved.

Article 38: Where members of the third-party organization are lawyers, certified accountants, tax professionals (certified tax agents), and other intermediary organization members, they must not violate provisions by undertaking business that might have an interest in the case during the period that they are performing third-party oversight and assessment duties; and for two years following the conclusion of oversight and assessment work, the persons described above, as well as the intermediary organizations to which they belong, must not accept business from the units and persons involved in the case or from other units and individuals with an interest in the case.

Article 39: Where the commission for the management of the third-party mechanism or the people's procuratorate responsible for handling the case discovers that the third-party organization or its members intentionally provided false reports or provided reports that are seriously inconsistent with the facts, they shall promptly submit a punishment recommendation to the relevant competent organs or associations in accordance with the Guiding Opinions, and where a crime is suspected, promptly make a report or give information to the relevant organs and enter them into the list of professionals prohibited from participation in the third-party organization.

Article 40: The people's procuratorate responsible for handling the case shall request that third-party organization members who know of the case, refer to the judicial "three provisions" on preventing interference, and do a good job in related reporting.

Chapter VII: Supplementary Provisions

Article 41: The pilot site commissions for the management of the third-party mechanism may draft specific implementation rules in consideration of local conditions and with reference to the Guiding Opinions and these detailed implementation rules, and report them for filing in accordance with pilot work requirements.

Article 42 The Supreme People's Procuratorate, State Council State-owned Assets Supervision and Administration Commission, Ministry of Finance, and All-China Federation of Industry and Commerce are responsible for the interpretation of these Implementing Regulations in conjunction with the Ministry of Justice, Ministry of ecology and the Environment, State Administration of Taxation, State Administration for Market Regulation, and China Association for the Promotion of Trade; they are to take effect from their date of issue.

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