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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[Source]https://www.spp.gov.cn/spp/xwfbh/wsfbh/202106/t20210603_520224.shtml
【Date of Issue】2021年06月03日

 

These Guiding Opinions are drafted on the basis of the Criminal Law, Criminal Procedure Law, and other relevant laws, regulations, and the spirit of related policies, so as to implement the spirit of General Secretary Xi Jinping's important speeches and the Party's major decisions and arrangements, to lawfully establish and complete a third-party oversight and assessment mechanism for the compliance of enterprises involved in criminal cases in the pilot projects on advancing the enterprise compliance reforms, to effectively correct and prevent violations and crimes by enterprises, to serve and ensure high-quality economic and social development, and spur the modernization of the country's governance system and governance capacity.

Chapter I: General Provisions

Article 1: The third-party oversight and assessment mechanism for the compliance of enterprises involved in criminal cases (hereinafter third-party mechanism) refers to people's procuratorates, when they are handling criminal cases involving enterprises, transferring those cases that meet the requirements for applying the enterprise compliance pilot project to a third-party oversight and assessment organization (third-party organization), which is selected and formed by commissions for the management of the third-party oversight and assessment mechanism (third-party commissions), to conduct investigations, assessments, oversight, and monitoring of the enterprises' compliance pledges. The results of the monitoring are to be an important consideration in the people's procuratorates' handling of the case in accordance with law.

Article 2: The establishment and operation of the third-party mechanism shall comply with the principles of legality and order, openness and fairness, equal protection, and treating both symptoms and causes.

Article 3: The third-party mechanism applies to cases of companies, enterprises, and other market entities' involvement in crimes such as economic crimes and crimes abusing public office during their production and business activities, and includes both crimes by units and crimes closely related to production and business activities that are committed by the companies or enterprises' actual controllers, business managers, key technical personnel, and other such personnel.

Article 4: Based on the circumstances of the case, people's procuratorates in pilot areas may apply these Guiding Opinions in criminal cases involving enterprises where all of the following conditions are concurrently met:

(1) The enterprises and individuals involved in the case admit guilt and accept punishment;

(2) The enterprises involved in the case can carry out production and business normally, pledge to establish or improve enterprise compliance systems, and have the basic conditions for initiating the third-party mechanism;

(3) The enterprise involved in the case is willing to apply the third-party mechanism;

Article 5: In criminal cases that have any of the following situations, the enterprise compliance pilot project and third-party mechanism are not to be applied:

(1) The company or enterprise was established by an individual to carry out illegal or criminal activities;

(2) After its establishment, the company or enterprise's primary activity was the commission of crimes;

(3) Personnel of the company or enterprise wrongfully used its name to commit crimes;

(4) Crimes endangering national security or terrorism are alleged;

(5) Others situations where application would be inappropriate.

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

Article 6: The Supreme People's Procuratorate, State-owned Assets Supervision and Administration Commission of the State Council, Ministry of Finance, and All-China Federation of Industry and Commerce are to collaborate with the Ministry of Justice, Ministry of Ecology and the Environment, State Administration of Taxation, State Administration for Market Regulation, China Council for the Promotion of International Trade, and other such departments to establish a Commission for the Management of the Third-Party Mechanism.

The Commission for 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 directory of professional personnel for the third-party mechanism;

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

(5) Carry out routine oversight and inspection patrols of local commissions for the management of 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 of enterprises involved in criminal cases;

(7) Plan and coordinate other work on the third-party mechanism at the national scope.

Article 7: Member units of the Commission for Management of the Third-Party Mechanism are to establish a joint conference mechanism, with responsible comrades for the Supreme People's Procuratorate, State-owned Assets Supervision and Administration Commission of the State Council, Ministry of Finance, and All-China Federation of Industry and Commerce serving as organizers, convening regularly or irregularly scheduled meetings as needed for work, researching major relevant matters and normative documents, and determining the focus and methods of work at a given stage.

In accordance with their duties and division of labor, each member unit shall earnestly implement the work tasks and matters agreed upon by the joint conference, establish and complete mechanisms such as for routine communication, joint coordination of research, information sharing, publicity, and training, to promote the smooth implementation of efforts related to the pilot on enterprise compliance reforms and the third-party mechanism.

Article 8: Pilot site people's procuratorates, State-owned Assets Supervision and Administration Commissions, finance departments, and industry and commerce federations shall consider actual local conditions and refer to articles 6 and 7 of these Guiding Opinions in organizing local commissions for the management of the third-party mechanism and joint conference mechanisms.

Pilot site commissions for management of the third-party mechanism are to perform the following duties:

(1) Establish a directory of professionals for the third-party mechanism and conduct dynamic management of it in accordance with the comments from all sides and actual work conditions;

(2) Be responsible for the routine selection, training, and evaluation of third-party organizations and their members, to ensure that they perform their duties in accordance with law;

(3) Carry out routine oversight and inspection patrols for the third-party organizations they select and appoint, and of their personnel;

(4) Promptly submit recommendations for penalties to the departments in charge, industry associations, and so forth where the members of third-party organizations have violated these Guiding Opinions or carried out other conduct that violates social mores or professional ethics that seriously harms the image and credibility of the third-party organizations, and where a crime is suspected, promptly report the case or give information to the public security and justice organs, and include them in the blacklist for the professional personnel directory for the third-party mechanism;

(5) Plan and coordinate other work on the local third-party mechanism.

Article 9: The commission for the management of the third-party mechanism shall establish an inspection patrol team, to carry out unannounced onsite spot checks and follow-up oversight of relevant organizations and individuals' performance of duties in the third-party mechanism.

People's congress delegates, political consultative conference members, people's supervisors, as well as experts from relevant fields such as retired judges, prosecutors, and accountants may serve as members of the inspection patrol team.

Chapter III: The Initiation and Operation of the Third-party Mechanism

Article 10: 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 solicit the comments of the enterprises and individuals involved in the case. Where enterprises or individuals 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, the people's procuratorates find that a criminal case involving enterprises meets the requirements for applying the third-party mechanism, they may consult with the local commission for managing the third-party mechanism on initiating the third-party mechanism. Based on the specific case circumstances and the type of enterprise involved in the case, the commission for managing the third-party mechanism shall randomly select personnel by type from the professional personal directory to form the third-party organization, and publicly announce them.

The list of personnel in the third-part organization shall be reported for filing to the people's procuratorate responsible for handling the case. Where the people's procuratorate or enterprises and individuals involved in the case, or other relevant units and individuals have objections to the membership of the third-party organization, the commission for management of the third-party mechanisms shall investigate and verify them and make adjustments in light of the circumstances.

Article 11: The third-party organization shall request that the enterprise involved in the case submit a special or several compliance plans, and the time limits for completing pledges in the compliance plan.

The compliance plan submitted by the enterprise involved in the case is to primarily rotate around problems in the enterprise's internal governance structures, rules systems, personnel management, and other areas that are closely related to the crime the enterprise is suspected of, the formulation of feasible compliance management specifications, building of effective compliance organization systems, completing compliance risk prevention reporting mechanisms, and making up for vulnerabilities in the enterprise system construction and oversight and management, to prevent recurrence of the same or similar violations or crimes.

Article 12: The third-party organization shall conduct a review of the compliance plan's feasibility, effectiveness, and comprehensiveness, submit comments and recommendations on revising and improving it, and determine the period for compliance monitoring based on the specific circumstances of the case and the period for the enterprises' fulfillment of pledges.

During the compliance monitoring period, the third-party organization may periodically or irregular conduct inspections or assessments of the enterprise involved in the case's fulfillment of the compliance plan, and may request that the enterprise involved in the case periodically report in writing on the implementation of the compliance plan, and send a copy to the people's procuratorate responsible for handling the case. Third-party organizations that discover facts of crimes or newly carried out criminal conduct by the enterprises involved in the case or their staff that have not yet been learned of by the case-handling organs, shall suspend the third-party oversight and assessment procedure and report to the people's procuratorate responsible for handling the case.

Article 13: After the period for compliance monitoring is completed, the third-party organization shall conduct a comprehensive inspection, assessment, and evaluation of the completion of the compliance plan by the enterprise involved in the case, and draft a written compliance evaluation report, sending it to the commission for management of the third-party mechanism that selected the third-party organization and the people's procuratorate responsible for handling the case.

Article 14: During the course of handling criminal cases involving enterprises, the people's procuratorates shall make compliance materials such as the third-party organization's compliance monitoring report, the enterprise's compliance plan, and periodic reports an important reference for lawfully making decisions such as whether or not to approve arrest, whether or not to prosecute, as well as whether to modify compulsory measures, and in submitting procuratorial suggestions and comments.

Where people's procuratorates discover that enterprises involved in the case did not complete or did not implement systems for prevention of violations and crimes, or have imperfect management with latent risks of violations and crimes that need to be promptly eliminated; they may consider compliance materials in submitting a procuratorial suggestion to the enterprise involved in the case.

Where the people's procuratorates make a decision to not prosecute enterprises involved in a case, but feel it is necessary to give administrative punishments, sanctions, or to confiscate unlawful gains, they shall consider the compliance materials and submit a prosecutorial comment to the competent organs in accordance with law.

Where through the third-party mechanism the people's procuratorates discover that enterprises involved in the case or their staffs have other illegal or criminal circumstances, they shall transfer the case leads to the competent organs, public security organs, or disciplinary inspection organs for handling in accordance with law.

Article 15: In criminal cases involving enterprises where the people's procuratorate plans to make decisions such as to not approve arrest, not prosecute, or modify compulsory measures, they may convene a hearing based on the "People's Procuratorate Provisions on Hearings in the Review of Cases" and invite members of the third-party organization to express their views.

Article 16: The people's procuratorates responsible for handling cases shall perform the following duties:

(1) File and review the list of members of the third-party organization, and where it discovered that members of the third-party organization have clearly improper circumstances, promptly submit comments and recommendations to the commission on management of the third-party mechanism;

(2) Conduct reviews of the compliance plans and periodic written reports from enterprises involved in cases, and submit comments and recommendations to the third-party organization;

(3) Conduct reviews of the third-party organization's monitoring reports, submit comments and recommendations to the commission for the management of the third-party mechanism; and, when necessary, carry out efforts to investigate and verify;

(4) Lawfully handle collateral appeals, accusations, or related applications and demands submitted by enterprises or individuals involved in the case, their defenders, agents ad litem or other relevant units and individuals during the period of the third-party mechanism's operation;

(5) Other legally-prescribed duties as provided for in the Criminal Procedure Law, People's Procuratorate Rules of Criminal Procedure, and other laws and judicial interpretations.

Article 17: During the compliance monitoring period, the third-party organization and its members may carry out necessary inspections and assessments of the compliance plan and period reports from the enterprises involved in the case, and the enterprises shall cooperate.

The third-party organization and its members shall perform the following obligations:

(1) Observe law and discipline, be diligent in completing duties, be objective and impartial;

(2) State secrets, commercial secrets, or personal private information learned of in the course of performing duties must not be leaked;

(3) Their position must not be used to facilitate extortion, acceptance of bribes or the illegal appropriation of the assets of enterprises and individuals involved in case;

(4) Their position must not be used to facilitate interference with the regular production and operations activities of enterprises involved in the case.

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 one year 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 individuals involved in the case or from other units and individuals with an interest in the case.

Article 18: During the period that the third-party mechanism is operating, 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, 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.

Enterprises involved in a case and their staff shall earnestly fulfill the compliance plan during the period required, and must not refuse to fulfill or indirectly refuse to fulfill the compliance plan, or refuse to cooperate with compliance monitoring by the third-party organization, or carry out other conduct seriously going against the compliance plan.

Chapter IV: Supplemental Provisions

Article 19: Where the disciplinary inspection organs find that enterprises suspected of bribery meet the requirements for the enterprise compliance pilot project and third-party mechanism, and submit a recommendation to the people's procuratorate, the people's procuratorate may apply these Guiding Opinions by reference.

Article 20: In consideration of actual local conditions, pilot site people's procuratorates, State-owned Assets Supervision and Administration Commission, finance departments, and Industry and commerce federations may draft specific implementation measures with reference to these Guiding opinions and in collaboration with relevant departments, and report them for filing as required for the pilot project efforts.

The responsibility for interpreting these Guiding Opinions is with Supreme People's Procuratorate, State-owned Assets Supervision and Administration Commission of the State Council, Ministry of Finance, and All-China Federation of Industry and Commerce are responsible for the interpretation of these Guiding Opinions, in collaboration with the Ministry of Justice, Ministry of Ecology and the Environment, State Administration of Taxation, State Administration for Market Regulation, China Council for the Promotion of International Trade, and other such departments; they are to take effect from the date of issue.

 

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