Recently, the All-China Federation of Industry and Commerce, the Supreme People's Procuratorate, the Ministry of Justice, the Ministry of Finance, the Ministry of Ecological Environment, the State-owned Assets Supervision and Administration Commission of the State Council, the State Administration of Taxation, the State Administration of Market Supervision and Administration, and the China Council for the Promotion of International Trade have developed and issued the "Measures for the Construction, Evaluation, and Review of Compliance of Enterprises Involved in Cases (for Trial Implementation)" (hereinafter referred to as the "Measures"). Prior to this, nine ministries and commissions have jointly issued the "Guiding Opinions on Establishing a Third Party Supervision and Evaluation Mechanism for Compliance of Enterprises Involved in Cases (Trial Implementation)" (hereinafter referred to as the "Guiding Opinions"), which comprehensively stipulates the application, composition, responsibilities, initiation, and operation of the third party supervision and evaluation mechanism for compliance of enterprises involved in cases. Based on the Guiding Opinions, the Measures issued this time point out the direction for promoting the pilot work of enterprise compliance reform in accordance with the law, standardizing the orderly implementation of work related to the third-party supervision and evaluation mechanism, and creating a new situation for the third-party supervision and evaluation mechanism of enterprise compliance involved in the case. This article preliminarily interprets the key contents of the Measures as follows.

1、 Refine the "regulation" of enterprise compliance rectification

1. Define the three steps of compliance for the enterprise involved: construction, evaluation, and review.

2. The corresponding implementation subjects of each link are: the enterprise involved - the third party organization - the People's Procuratorate.

3. The specific work content of each link is:

(1) The enterprises involved in the case have formulated special compliance rectification plans for compliance risks closely related to suspected crimes, improved their corporate governance structure, improved internal rules and regulations, and formed an effective compliance management system.

(2) The third-party organization shall understand, evaluate, supervise, and inspect the effectiveness of the special compliance rectification plan and relevant compliance management systems of the enterprises involved.

(3) The People's Procuratorate responsible for handling cases reviews the evaluation process and conclusions of third-party organizations, or the People's Procuratorate reviews the compliance plans and rectification reports submitted by small and micro enterprises that have not initiated third-party mechanisms.

2、 How to "Build" the Compliance Construction of Enterprises Involved in the Case

1. Premises: The enterprises involved in the case should fully stop their criminal and illegal activities, refund their illegal income, make up for taxes and overdue fines, and pay relevant fines. They should fully cooperate with the relevant competent authorities, public security organs, procuratorial organs, and third-party organizations in the relevant work, which is a prerequisite for the criminal compliance construction of the enterprises involved.

2. Establish a compliance construction leading group:

(1) Generally, the enterprises involved in the case should establish a compliance construction leading group.

(2) Members of the compliance construction leading group: composed of its actual controller, main responsible person, and directly responsible executives. If necessary, external professional institutions or professionals can be hired to participate or assist.

(3) Responsibilities of the compliance construction leading group: Based on comprehensive analysis, research, and judgment of corporate compliance risks, and in combination with the industry's compliance construction guidelines, research and develop special compliance plans and internal rules and regulations.

3. Develop a special compliance plan: The special compliance plan should effectively prevent the recurrence of the same or similar illegal and criminal acts.

4. Making compliance commitments and making clear statements: The actual controller and main responsible person of the enterprise involved should make compliance commitments and make clear statements in the special compliance plan. Compliance is the priority value of the enterprise, and a zero tolerance attitude should be adopted towards violations and laws to ensure that compliance is integrated into the development goals, development strategies, and management system of the enterprise.

5. Set up a compliance management organization or personnel:

(1) Requirements for setting up management institutions or personnel: suitable for the type, scale, business scope, industry characteristics, etc. of the enterprise; It can be set up exclusively or managed concurrently.

(2) The responsibilities of the management organization or personnel must be clear, specific, and assessable; Compliance objectives should be established and compliance measures refined based on their functional characteristics; Perform their duties independently, and have the right to fully express their opinions and participate in decisions involving significant compliance risks.

6. Establish and improve the system and mechanism of compliance management, and establish mechanisms to address the needs of compliance risk prevention and control and the performance of duties by compliance management institutions by formulating compliance management norms, filling gaps in supervision and management, etc.

(1) Operation guarantee mechanism: The enterprise involved in the case should provide necessary human and material resources such as personnel, training, publicity, venues, equipment, and funds for the effective operation of the compliance management system mechanism.

(2) Supervision mechanism: The enterprise involved in the case should establish a monitoring, reporting, investigation, and handling mechanism to ensure timely detection and monitoring of compliance risks, and to correct and handle violations.

(3) Performance evaluation mechanism: The enterprise involved in the case should establish a compliance performance evaluation mechanism, introducing compliance indicators to assess the main responsible persons, business management personnel, key technical personnel, etc. of the enterprise.

(4) Rectification mechanism: The enterprise involved in the case should establish mechanisms such as continuous rectification and regular reporting to ensure that the compliance management system and mechanism are continuously adjusted and improved in accordance with the actual operation and development of the enterprise.

3、 How to "evaluate" the compliance evaluation conducted by third-party organizations on the enterprises involved

1. Third party organizations can formulate detailed and operable compliance evaluation work plans based on the situation and work needs of the enterprise involved.

2. The third party organizes the evaluation of the effectiveness of the special compliance rectification plan and relevant compliance management system of the enterprise involved, and the evaluation focuses on:

(1) Effective identification and control of compliance risks involved in the case;

(2) Timely handling of illegal acts;

(3) Reasonable allocation of compliance management institutions or management personnel;

(4) Establish a compliance management system and mechanism and fully guarantee human and material resources;

(5) The normal operation of monitoring, reporting, investigation, handling mechanisms, and compliance performance evaluation mechanisms;

(6) The continuous rectification mechanism and compliance culture have been basically formed.

3. An evaluation index system should be established: focusing on the rectification and prevention of compliance risks involved in the case, combining specific industry compliance evaluation indicators, in line with the actual situation of the enterprise involved.

4. Weight setting of evaluation indicators:

(1) Based on factors such as the type, scale, business scope, industry characteristics, and criminal behavior of the enterprise involved;

(2) Properly increase the weight of indicators in key areas, weak links, and important positions of compliance management.

4、 How to "review" the compliance review of enterprises involved by the Third Party Mechanism Management Committee and the People's Procuratorate

1. The focus of the review of written compliance review reports submitted by third-party organizations.

(1) Whether the evaluation plan developed and implemented by the third party organization is appropriate;

(2) Whether the evaluation materials are comprehensive, objective, and professional enough to support the conclusions of the investigation report;

(3) Whether the third-party organization or its constituent personnel have any improper behavior that may affect the fair performance of their duties or are suspected of committing illegal or criminal acts.

2. A review of a third party organization or its constituent personnel for improper conduct or suspected violations of laws and crimes.

(1) "If the management committee of a third-party mechanism receives reports or objections regarding improper behavior or suspected violations or crimes by the third-party organization or its members, or if the People's Procuratorate receives complaints or charges regarding the above, both parties shall promptly notify each other of the situation and propose handling suggestions.".
(2) Upon review, if a third-party organization or its members have committed prohibited acts in violation of the Guiding Opinions and its implementation rules, which are sufficient to affect the authenticity and effectiveness of the evaluation conclusions, the third-party mechanism management committee should reorganize the third-party organization to conduct the evaluation.

5、 Special regulations for small and micro enterprises

1. It is possible for small and micro enterprises to carry out compliance rectification, develop compliance plans and rectification reports without starting a third-party mechanism.

2. The focus of the People's Procuratorate's review of compliance plans and rectification reports submitted by small and micro enterprises includes the implementation of compliance commitments, the implementation of compliance plans, and the effectiveness of compliance rectification.

6、 Establish a reward and punishment mechanism for the evaluation results of the compliance construction of the enterprises involved

1. Award: For enterprises involved in the case whose compliance construction has been evaluated to meet the effectiveness standards, the People's Procuratorate may, based on the evaluation conclusions, make a decision not to approve the arrest, change the mandatory measures, or initiate a prosecution in accordance with the law, propose sentencing recommendations for lenient punishment, or submit procuratorial opinions on lenient punishment or punishment to the relevant competent authorities.

2. Punishment: If the compliance construction of the enterprise involved in the case fails to meet the effectiveness standards after evaluation or uses fraudulent means to obtain an evaluation conclusion, the People's Procuratorate may, in accordance with the law, make a decision to approve the arrest or prosecution, propose sentencing recommendations for a more severe punishment, or submit procuratorial opinions on a more severe punishment or punishment to the relevant competent authority.

7、 Clarify the compliance direction of "focusing on specific compliance and aiming at comprehensive compliance"

According to Article 1 of the Measures, the compliance construction of enterprises involved in a case refers to the activities of enterprises involved in a case to formulate special compliance rectification plans for compliance risks closely related to suspected crimes, improve the corporate governance structure, improve internal rules and regulations, and form an effective compliance management system.
At the same time, Article 21 stipulates that the enterprises involved in the case should take comprehensive compliance as the goal and special compliance as the focus, and gradually add necessary special compliance plans based on changes in factors such as scale, business scope, industry characteristics, to promote the realization of comprehensive compliance.

8、 Special provisions for enterprises that have related or similar compliance risks with the enterprises involved

The second paragraph of Article 20 of the Measures stipulates that the People's Procuratorate responsible for handling the case may make procuratorial recommendations on compliance rectification for enterprises that have related compliance risks with the enterprises involved or have been exposed to compliance risks by similar cases.