Supreme Procuratorate: Increase the Punishment of Corruption among Internal Personnel of Private Enterprises in accordance with the Law. Organs | Opinions | Issues | Strengthening | Cases | Crimes | Personnel | Enterprises

Recently, the Supreme People's Procuratorate issued the "Opinions on Punishing and Preventing Crimes of Infringement of the Legitimate Rights and Interests of Private Enterprises by Internal Personnel in accordance with the Law, and Creating a Good Legal Environment for the Development of the Private Economy", requiring that the punishment for corrupt behaviors such as embezzlement, misappropriation of funds, and bribery committed by internal personnel of private enterprises be increased in accordance with the law; Promote and improve the mechanism for recovering and disposing of property involved in cases, and help private enterprises recover losses.

The Opinion points out that crimes committed by internal personnel of private enterprises, especially key positions such as executives, finance, procurement, sales, and technology, not only seriously damage the legitimate rights and interests of private enterprises, affect their core competitiveness and innovative development, but also disrupt the fair competition market order and disrupt the development environment of private enterprises.

The Supreme People's Procuratorate pointed out that from the perspective of case handling and research, there are three types of issues that have been reflected more in the protection of the legitimate rights and interests of private enterprises: first, intervening in economic disputes through criminal means, illegally filing cases against private enterprises or private entrepreneurs, illegally sealing, seizing, and freezing the property of private enterprises, and so on; The second issue is how private enterprises involved in criminal offenses can maintain normal production and operation; The third issue is that internal personnel of private enterprises, especially key positions such as executives, finance, procurement, sales, and technology personnel, who infringe upon the legitimate rights and interests of private enterprises, are not promptly and effectively punished.

Protecting the legitimate rights and interests of private enterprises in accordance with the law is an important responsibility of the procuratorial organs, and the Supreme People's Procuratorate has always attached great importance to it. In recent years, a series of procuratorial systems and measures have been introduced to protect the legitimate rights and interests of private enterprises, such as correcting cases related to property rights protection in accordance with the law, carrying out special clean-up of criminal lawsuits related to private enterprises, carrying out special activities for supervising the filing of cases related to non-public economy, and actively exploring and promoting pilot compliance reform of enterprises involved.

The Opinion consists of four parts and 12 articles, which not only provide specific requirements for the performance of procuratorial duties, but also clarify the institutional mechanisms that need further research and improvement. When applying the Opinion, it is necessary to accurately grasp the basic requirements of the Opinion and the scope of applicable cases, guide the handling of cases with correct concepts, and together with measures such as preventing criminal intervention in economic disputes and compliance reform of involved enterprises, build a legislative criminal justice protection system that serves the private economy.

One is to comprehensively and accurately grasp the basic requirements for handling cases. The Opinion mainly applies to crimes committed by internal personnel of private enterprises who infringe upon the legitimate rights and interests of private enterprises, and is an aspect of measures taken by the procuratorial organs to serve and ensure the healthy development of the private economy. In response to the common problems and difficulties in handling such cases, procuratorial organs should fulfill their prosecutorial duties in accordance with the law, achieving neither inadequacy nor excess. To implement the requirements of equal treatment and protection for state-owned and private enterprises, we cannot simply regard crimes committed by internal personnel of private enterprises as a "family matter" of private enterprises, and attach importance to them in terms of ideology, system, and measures. We must adhere to the strict handling of cases in accordance with the law, fair justice, and fully and accurately implement the criminal policy of combining leniency and severity. We cannot go against fairness and justice and adopt a one size fits all approach. We should respect the will of private enterprises, properly grasp the boundary between criminal intervention and enterprise self-regulation, and focus on solving the difficulties of reporting and investigating private enterprises. We should not excessively intervene in the business activities of private enterprises and should not interfere with their normal production and operation under the pretext of protecting their interests. We must strictly distinguish between economic disputes and criminal offenses in accordance with the law, especially for cases arising from equity disputes, debt disputes, etc., and be adept at judging between crime and non crime from substantive legal relationships.

The second is to fulfill various prosecutorial responsibilities with high quality and efficiency. The Opinion takes high-quality and efficient handling of every case as its basic value pursuit, focusing on some prosecutors who do not attach enough importance to the handling of criminal cases involving internal personnel of private enterprises, and their inadequate performance of duties. It further clarifies the responsibilities, tasks, and work requirements of each prosecutorial link, guides and supervises investigators to change their mindset, and fulfill the various responsibilities assigned by law in accordance with the law. To better fulfill the responsibility of filing supervision, if criminal cases involving internal personnel reported by private enterprises should be filed but not filed, legal supervision should be strengthened. To accurately grasp the standards for arrest and prosecution in accordance with the law, those who meet the conditions for arrest should be arrested, especially to correctly understand the role of arrest measures in ensuring the smooth progress of criminal proceedings, and cannot replace arrest conditions with prosecution conditions; Accurately applying prosecution and non prosecution, the Opinion has refined the methods for reviewing and judging the necessity of prosecution in response to issues in the exercise of prosecution discretion. We must integrate the work of recovering stolen goods and damages throughout the entire process of handling cases, and prevent criminals from gaining any benefits from infringing on the legitimate rights and interests of private enterprises. We need to strengthen the effective connection between administrative law enforcement and criminal justice, and form a joint effort to punish crimes committed by personnel within private enterprises. At the same time, the Supreme People's Procuratorate will further strengthen the judicial interpretation and legislative recommendations related to the protection of the legitimate rights and interests of private enterprises through research, and strengthen the protection of the rule of law.

Thirdly, innovative measures should be taken to jointly strengthen crime prevention. The key to protecting the legitimate rights and interests of private enterprises lies in prevention. This is not only the responsibility of the judicial authorities, but also the responsibility of private enterprises themselves. From the perspective of prosecution and case handling, there are varying degrees of problems behind the criminal cases committed by internal personnel, such as inadequate corporate governance system, chaotic financial management, lack of internal prevention mechanisms, and weak legal awareness among practitioners. Some problems also directly affect the investigation and evidence collection, as well as the judgment of the nature of the case. Strengthening their own compliance construction and improving the institutional mechanisms for preventing internal personnel crimes are fundamental measures for private enterprises to protect their legitimate rights and interests from the source. The Opinion requires procuratorial organs at all levels to actively take measures in conjunction with case handling, guide and promote private enterprises to independently strengthen compliance construction, establish modern enterprise systems, and enhance the legal awareness, integrity awareness, and bottom line awareness of practitioners.

The Supreme People's Procuratorate stated that it hopes that private enterprises will take the initiative to strengthen crime prevention and not wait for losses before making up for them.

The legal relationships, factual evidence, and conflicts of interest involved in criminal cases involving personnel within private enterprises are relatively complex. After the issuance of the Opinion, the Supreme People's Procuratorate will further strengthen training and guidance to effectively improve the quality and efficiency of case handling.

The full text of the opinions is as follows:

Regarding punishment and prevention in accordance with the law

Internal personnel infringement in private enterprises

Crimes related to the legitimate rights and interests of private enterprises

For the development of private economy

Opinions on creating a good legal environment

In order to thoroughly implement the spirit of the 20th National Congress of the Communist Party of China, fully implement Xi Jinping's economic thoughts and Xi Jinping's thoughts on the rule of law, earnestly implement the Opinions of the Central Committee of the Communist Party of China and the State Council on Promoting the Development and Growth of the Private Economy, actively respond to the concerns of entrepreneurs, and help optimize the development of the private economy with high-quality and efficient procuratorial duties, to punish and prevent crimes committed by internal personnel of private enterprises that infringe on the interests of private enterprises, and to create a good environment for the rule of law, the following opinions are put forward.

1. basic requirements

1. Thoroughly implement the decision-making and deployment of the Party Central Committee, and regard punishing and preventing crimes committed by private enterprise insiders in accordance with the law as an important part of protecting the legitimate rights and interests of private enterprises in accordance with the law. Since the 18th National Congress of the Communist Party of China, the Party Central Committee with Comrade Xi Jinping at the core has attached great importance to the healthy and high-quality development of the private economy. General Secretary Xi Jinping has issued a series of important instructions and instructions, highlighting the "two unshakable" and "three unchanged". "Two health". The report of the 20th National Congress of the Communist Party of China clearly requires: "Optimize the development environment of private enterprises, protect the property rights of private enterprises and the rights and interests of entrepreneurs in accordance with the law, and promote the development and growth of the private economy." Crimes committed by internal personnel of private enterprises, especially those in key positions such as senior executives, finance, procurement, sales, and technology, not only seriously damage the legitimate rights and interests of private enterprises, affect the core competitiveness and innovative development of private enterprises, but also disrupt fair competition and market order. Destroying the development environment of private enterprises. Procuratorial organs at all levels should thoroughly implement the decisions and arrangements of the CPC Central Committee, implement the requirements of equal treatment and equal protection in performing their duties and handling cases, and help create a market-oriented, legalized, and international business environment. Adhering to both the symptoms and the root causes, we should not only punish the crimes committed by the internal personnel of private enterprises in accordance with the law, but also ensure the normal production and operation activities of enterprises in handling cases, and help private enterprises eliminate malpractices and improve internal governance.

2. Punish crimes committed by internal personnel of private enterprises that affect their healthy development in accordance with the law. We will increase the punishment for corrupt behaviors such as embezzlement, misappropriation of funds, and bribery committed by internal personnel of private enterprises in accordance with the law. Promote the improvement of the mechanism for recovering and disposing of property involved in cases, and help private enterprises recover losses. Combining case handling to promote the governance of corruption at the source of private enterprises. Internal personnel of private enterprises who take advantage of their positions, illegally operate similar businesses, illegally profit for family and friends, engage in favoritism, engage in low price stock conversions, and sell enterprise assets must be dealt with in accordance with the law. Strictly crack down on key technical and management personnel in private enterprises who infringe on trade secrets, trademark rights, copyrights, and other crimes that affect the innovation and development of enterprises. In the process of handling the above-mentioned cases, if any criminal clues such as bribery or bribery of non-state personnel are found, they shall be promptly transferred to the supervisory and public security organs in accordance with the law. When handling cases, it is necessary to prevent criminal intervention in economic disputes. For cases caused by economic disputes such as equity disputes and debt disputes, it is necessary to accurately grasp the boundary between crime and non crime.

3. Adhere to fair justice and comprehensively and accurately implement the criminal policy of combining leniency and severity. Adhere to strict and lawful handling of cases, fair justice, and comprehensively consider factors such as subjective malice, criminal nature and circumstances, confession and punishment, return of stolen goods and compensation, and reconciliation with victimized enterprises. Fully and accurately implement the criminal policy of combining leniency and severity, and achieve strict punishment according to law and leniency when lenient. Suspect and defendants who are subjectively vicious and whose circumstances are abominable shall be severely punished according to law; For individuals who plead guilty to punishment, have minor subjective malice, and have minor circumstances, they shall be dealt with leniently in accordance with the law.

2. perform procuratorial duties with high quality and efficiency, and ensure the organic unity of political, legal and social effects

4. Strengthen case-filing supervision. Combined with the characteristics of criminal cases committed by personnel in private enterprises, we will work with public security organs to further clarify the filing standards for common crimes such as job embezzlement, misappropriation of funds, and infringement of trade secrets, and improve the filing and review mechanism for cases involving private enterprises to prevent cases that should be filed but not filed. Give full play to the role of investigation supervision and cooperation mechanism, strengthen the information sharing of criminal cases of private enterprise insiders who infringe on the interests of private enterprises, and supervise the public security organs that should file a case but not file a case in accordance with the law. When the procuratorial organ receives a report, accusation, or report, or finds clues to supervision in its work, it must promptly carry out investigation and verification work in accordance with the law; if it needs to be supervised and corrected, it shall submit supervision opinions to the public security organ in accordance with the law. For the supervision of the case, pay attention to follow up the effectiveness of the inquiry, to prevent the establishment of non-investigation. Explore the use of big data legal supervision model to solve the problem of "difficult to file a case.

5. Accurately grasp the standards for review and arrest. Accurately grasp the evidence conditions, punishment conditions, and social danger conditions for arrest, approve arrests in accordance with the law for those who meet the arrest conditions, and prevent using prosecution conditions to replace arrest conditions; For those who are not necessary for arrest, a decision shall be made in accordance with the law not to approve the arrest. For key technical personnel, the necessity of arrest should be determined in accordance with the case and the production and operation needs of the enterprise in accordance with the law. Make good use of measures such as guiding evidence collection, returning for supplementary investigation, and self investigation, and strengthen the guidance of evidence collection for criminal cases committed by internal personnel of private enterprises. For those who do not meet the arrest conditions but have the need for supplementary investigation, a supplementary investigation outline should be listed. If a suspect destroys or forges evidence, colludes with witnesses or interferes with witnesses' testimony, which is enough to affect the normal progress of investigation, review and prosecution, he shall be arrested according to law.

6. Accurately grasp the standards for prosecution. Adhere to the principles of legality of crimes and punishments, compatibility of criminal responsibilities and punishments, and equality before the law, and accurately apply prosecution and non prosecution in accordance with legal provisions and legal procedures. The nature of the criminal act itself, the social harm and the subjective malignancy of the suspect are the basic basis for deciding whether to sue or not to sue; Admitting guilt and punishment, compensation and forgiveness, and the attitude of the victim enterprise are factors that need to be fully considered when determining the nature of the behavior and subjective malice, and when the case is in a state of being actionable or non actionable. On the basis of identifying the facts and circumstances of the case, and taking into account factors such as the specific situation of the case and public interest considerations, the necessity of prosecution is reviewed. For those who meet the legal conditions and have no need to file a lawsuit, a decision not to file a lawsuit shall be made in accordance with the law.

7. Strengthen the work of recovering stolen goods and damages. Make full use of the leniency system of pleading guilty, urging and guiding suspect and defendants to return stolen goods and compensation, and actively help the murdered enterprises recover losses. Pay attention to putting forward sentencing suggestions on property punishment according to law, increase supervision on the implementation of property related parts of criminal judgments, and prevent suspect and defendants from getting any benefits from cases of infringement on the interests of private enterprises.

8. Strengthen the effective connection between administrative law enforcement and criminal justice. Strengthen the coordination with administrative law enforcement agencies such as market supervision departments and intellectual property authorities, and supervise relevant administrative law enforcement agencies to promptly transfer criminal clues discovered during the law enforcement process, such as suspected bribery of non-state personnel, bribery of non-state personnel, and infringement of intellectual property rights, to public security organs in accordance with the law. Strengthen case filing supervision for cases transferred by administrative organs for investigation. If the procuratorial organ decides not to prosecute a case and needs to impose administrative penalties, the procuratorial opinion shall be submitted to the relevant administrative organ in accordance with the law.

3. promote the improvement of legislation and judicial interpretation to provide a more powerful legal guarantee for the healthy development of the private economy

9. Promote the improvement of relevant legislation. Combined with the handling of cases, in-depth investigation of the outstanding problems of inadequate implementation of equal protection of private enterprises in criminal legislation, justice and other aspects, actively put forward legislative suggestions, and promote the amendment of the law on the punishment of crimes committed by internal personnel of private enterprises in accordance with the law, so as to reflect the requirements of equal protection in law.

10. Promptly introduce relevant judicial interpretations. In conjunction with the Supreme People's Court, we will study and formulate judicial interpretations on the application of laws in handling criminal cases such as bribery and embezzlement of non state employees. This will clarify the legal application, conviction and sentencing standards, determination of statutory leniency and severity in handling criminal cases related to internal personnel of private enterprises in judicial practice, the boundary between this crime and that crime, and the grasp of the criminal policy of combining leniency and severity, and unify judicial standards.

4. strengthen the publicity of the rule of law and promote enterprises to strengthen their own compliance construction

11. Guide and promote private enterprises to independently strengthen compliance construction. In view of the internal management problems reflected in the criminal cases of internal personnel in private enterprises, we should promote source governance by making and issuing procuratorial suggestions, help enterprises to check and fill gaps, establish rules and regulations, strengthen management, and promote the establishment of a modern enterprise system. In conjunction with the Federation of Industry and Commerce, we will encourage and guide private enterprises to independently strengthen compliance construction, regard clean operation as an important part of compliance construction, issue guidelines and construction standards for corporate integrity and compliance, implement internal supervision and inspection systems, and implement financial audits, inspections, and audits for key departments, key links, and key personnel such as human, property, infrastructure, procurement, and sales, timely discover and prevent illegal and criminal problems, and promote the construction of legal and clean private enterprises.

12. Innovate and carry out crime prevention work. Strengthen cooperation with various levels of industry and commerce federations, industry associations, chambers of commerce, and other units, and strengthen targeted crime prevention work based on the characteristics of internal personnel crimes in different types of private enterprises. By releasing typical cases, holding "Open Day for Prosecutors" and regularly carrying out legal publicity and education such as prosecutor lectures and exhibitions, we will increase efforts to interpret the law through case studies. Guide internal personnel of private enterprises to enhance their awareness of the rule of law, integrity, and bottom line by publicly delivering legal documents and inviting them to participate in typical case trials and observations. Fully utilize the new media platform of the procuratorial organs, continuously promote the concept, practices, and achievements of protecting the private economy equally according to law, and promote the cohesion of social consensus.