Fundamentals of Criminal Procedure
Received: 18 April 2021
Accepted: 21 September 2021
DOI: https://doi.org/10.22197/rbdpp.v7i3.578
Abstract: The tale of procedural fairness is, by now, familiar and well worn. People´s Republic of China criminal system of justice, which is currently gearing towards the pathway of procedural fairness, has (for the better or for the worse) attracted a wide global gaze. Irrespective of the underlying fairness (or the lack thereof) of the grievances brought forth by a worldwide phalanx of critics, China is steadily toiling towards the path of procedural justice, which is rooted firmly in the Rule of Law. Whilst procedural justice and procedural fairness map seamlessly on to the context of corporate criminal procedure law, there is bevy of critical questions that are in dire need of being consistently addressed nonetheless. One which is whether and to what extent politically-charged tools, which seemingly belie the western-borne concept of separation of powers (as the Supreme People´s Procuratorate Guiding Cases and, to some degree, Supreme People´s Court Judicial Interpretations) are amenable to forge the path ahead to meeting the fundamental tenets of due process in corporate criminal procedure law in Mainland China. Against this background, this paper aims to answer two sweeping research questions. Firstly, the degree to which corporate governance (and corporate compliance) subdues (and foremost trumps) corporate criminal liability. Secondly, whether and to what extent SPP Guiding Cases have catalyzed a seismic shift in People´s Republic of China criminal procedural law. Conversely, one central contention of this paper is that a set of fairness-fraught corollaries can be withdrawn from SPP Guiding Cases with a view to map the path forward to fulfilling the baseline standards of both procedural fairness and procedural justice in People´s Republic of China corporate criminal procedure law.
Keywords: Corporate criminal procedure law, People´s Republic of China, Supreme People´s Procuratorate Guiding Cases, procedural fairness, procedural justice, due process.
Resumo: A narrativa que gravita em torno da justiça processual é, no momento que nos interpela, assaz conhecida. O sistema de administração de justiça penal chinês, que está a encetar uma consistente trajectória de aproximação aos prolegómenos essenciais da justeza processual, tem (para o bem ou para o mal) granjeado atenção à escala global. Sem embargo da justeza (ou falta dela) do entono crítico desferido por uma plêiade de detractores à escala mundial, a China tem envidado hercúleos esforços no sentido de caminhar na direcção da justeza processual, que se propugna firmemente no Estado de Direito. Embora a justeza processual e a justiça processual se enquadrem harmoniosamente no desenho funcional do processo penal da pessoa colectiva, denota-se, contudo, a existência de um conjunto de questões nucleares que devem ser consistente e acuradamente abordadas. De entre as quais se enumera a questão de se saber em que medida instrumentos de cariz vincadamente político, que, aparentemente, brigam frontalmente com conceitos jurídicos anquilosados no ideário jurídico ocidental, como o princípio da separação de poderes (v.g. os Casos Vinculantes emitidos pela Procuradoria Geral do Povo Chinês ou, de forma essencialmente similar, as interpretações judiciais gizadas pelo Supremo Tribunal do Povo Chinês) avocam a virtualidade de encetar, em si mesmo tomados, uma trajectória (consistente) de aproximação aos pilares identitários de um processo justo e equitativo, que se move no horizonte funcional do processo penal da pessoa colectiva da China Continental. Ancorados no enquadramento temático que antecede, este artigo doutrinal tem como objectivo primacial responder a duas questões-volantes. Em primeiro lugar, em que medida o governo societário (e o cumprimento normativo) fagocita (e, sobretudo, pulveriza) a responsabilidade penal da pessoa colectiva. Em segundo lugar, se e em que medida de significado funcional os Casos Vinculantes esculpidos laboriosamente pela Procuradoria Geral do Povo Chinês tiveram o condão de provocar uma mudança de paradigma no processo penal da República Popular da China. De tal facto se infere que uma das ideias motrizes que avulta deste artigo doutrinal radica no axioma de que se pode decantar (ou extrair) um conjunto de corolários jurídicos (que são vastamente perpassados por considerações de justeza processual) dos Casos Vinculantes emitidos pela Procuradoria Geral do Povo Chinês, que se colimam à criação de parâmetros referenciais de justeza processual e de justiça processual em torno dos quais deverá gravitar o processo penal da pessoa colectiva da República Popular da China.
Palavras-chave: Direito processual penal da pessoa colectiva, República Popular da China, Compilação de Casos Vinculantes emitidos pela Procuradoria Geral do Povo Chinês, justeza processual, justiça processual, processo justo e equitativo.
Summary: Introduction; 1.The design of effective corporate compliance programs matters indeed: The interplay between corporate governance and the minimization of corporate criminal liability; 2.The procedural legality turn in the criminal procedure law of People´s Republic of China catalyzed by Supreme People´s Procuratorate Guiding Cases: Introduction; 3.Fairness-fraught corollaries than can be withdrawn from the legality turn catalyzed by SPP Guiding Cases: The right to a fair trial and the right to an effective defence should be allotted to corporations; 4. Concluding remarks; References.
Introduction
People´s Republic of China´s criminal procedure law stands at a critical juncture: clutch both social stability and legal security amidst troubled times. Yet troubled times, albeit conflict-ridden, seldom stand in the way of change. Rather, troubled times, if nothing else, unlock endless opportunities to gain access to the hallowed stairways of legality. Troubled times, like rocky roads, often lead to dazzling (even riveting) destinations. No matter how quixotic and paradoxical that may sound at first blush.
Axiomatic as it is, China has weathered the storm of legal havoc which has beset (and therefore frayed) the fabric of its criminal procedure law for a long-drawn-out 2. The pendulum of procedural fairness has thereby swung far and hard against the abhorrent unlawfulness, which rendered legal havoc tokenistic.
The quintessential Supreme People´s Procuratorate (SPP) Guiding Cases played a pivotal role in catalyzing a seismic shift (towards procedural fairness) in People´s Republic of China criminal procedural law while vanquishing (and in the overwhelming majority of the cases lashing out and upending) the greatest foes of due process of all: raging legal havoc and gruesome injustice. As a result, perceptions of procedural fairness, a by-product of both due process and natural justice 3, are currently the norm rather than the exception in People´s Republic of China criminal procedural law.
Perceptions of procedural fairness, which are paramount to instill trust upon defendants 4, are slowly (yet steadily) being doled out to the latter in a regular basis. Which embodies nothing but a yearning hope that things (procedurally speaking) are to bode well in China as perceptions of procedural fairness (coupled with a sought-after procedural justice) amount as the harbinger (truly the forebear) of legal security and due process, which, taken together, are not by any means to be shrugged off in the remit of criminal procedural law 5.
Law and order, one of the flagships of modern China, seeks both to fight crime 6 and attain social control. In an earnest attempt to grasp such a laudable goal, both fairness and transparency 7 (as opposed to an illegal and thereby harrowing disfranchisement of civil rights 8) must be at the forefront of clean and seamless criminal proceedings. Lest a given system of administration of justice wants to shun the jarring sobriquet of “mockery of justice” 9, fairness and transparency must spearhead criminal proceedings. Unlawfulness, the twin brother of legal havoc, must be trounced if a given system of criminal justice is to climb up the ladder that leads to the Olympus of procedural legality: due process, which dwells on the other end of the spectrum of both procedural fairness and procedural justice. Be that in China or elsewhere. It is no different in the remit of corporate criminal procedure law 10.
To the extent that fairness and transparency play (in concert) a key role in shaping a seamless corporate criminal procedure law in People´s Republic of China, corporations must be allotted clear and unambiguous guidelines to steer them towards corporate compliance 11 while shaping a good corporate citizenship 12.
Against this background, the Chinese judiciary must assist corporations in navigating through the sinuous road of corporate compliance as to both avoid corporate criminal liability and to lay down the foundations upon which stands an ethical corporate culture that wishes the latter away. It boils down to nudge corporations towards more rational (therefore) legal avenues – the gist of behavioral ethics 13, which stands as a burgeoning body of cognitive research 14 of paramount importance in the breadth and scope of corporate criminal procedural law 15. An overriding goal that both SPP Guiding Cases and Supreme People´s Court of China Judicial Interpretations have neither lost sight of nor have overlooked.
With this context in place, this paper seeks to map the path forward to shaping a new corporate criminal procedural law – an utterly uncharted and untapped universe in Mainland China – that draws on the robust pillars of procedural fairness and procedural justice: the cornerstones of due process.
This paper proceeds in four parts. Part I will be geared towards briefly establishing an interplay between corporate governance and a to-be-avoided corporate criminal liability. Part II fleshes out the procedural legality turn in People´s Republic of China criminal procedure law catalyzed by SPP Guiding Cases while canvassing the rationale behind such a seismic shift. Part III shines a keen light on the cultural and legal changes (from both a perspective and prospective standpoint) set in motion by SPP Guiding Cases while parsing its impact on corporate criminal procedure law. Part IV wraps up this long-winded paper by summarizing its main findings.
1. The design of effective corporate compliance programs matters indeed: The interplay between corporate governance and the minimization of corporate criminal liability
China is a behemoth country whose cultural background rests upon robust Confucianism 16 traits 17. The sweeping aims of both preserving social harmony 18 and maintaining social stability are lodged at its core 19. Such an interplay, albeit seemingly unimportant at first blush, has a sizable impact on dispute resolution 20 in Mainland China 21. The design of effective corporate compliance programs (企業合規項目) aimed at drastically abridge (in an ideal world upend) corporate criminal liability (公司刑事責) is not by all means an exception. To portray such a tandem, light must be cast upon the intrinsic linkage between a law-abiding corporate governance (公司治理) and a to-be-avoided corporate criminal liability 22.
The increasing importance (and dire need) of a law-abiding corporate governance is tightly interlocked with China´s fast-paced economic growth. China was blessed by an unparalleled and unprecedented economic growth in previous decades, which has sent ripples across the world 23. There have been calls (often wrapped in opaqueness and beset by the devilishly harmful virus of unfairness) positing that China´s judicial system is woefully ill-prepared to offer a befitted protection to the creditors 24 though. Such an in-dire-need-to-be-awarded protection to creditors stands at the heart of a sought-after law-abiding corporate governance to spawn effective corporate compliance programs, which, in crux, aim to avoid corporate criminal liability altogether. A law-abiding corporate governance legal framework 25 is thus closely connected with the sought-after instillment of trust (信任) 26, trustworthiness (誠信度) 27 and efficiency (效率) 28 on (of) a given system of administration of justice (既定的司法行政) with a view to wear down and (ideally) cast off the gruesome effects of white-collar crime (白領犯罪) 29 and economic-financial criminality (經濟金融犯罪) of which corporate criminality (公司刑事責任) stands as a capstone.
Against this background, this paper seeks to shine a keen light on the candent challenges that lie ahead for corporate criminal procedure law in Mainland China.
In addition to that, light will be cast upon the procedural features that China´s corporate criminal procedure law must embrace in order to tackle effectively the scourge of corporate criminal liability.
2. The procedural legality turn in the criminal procedural law of People´s Republic of China catalyzed by the Supreme People´s Procuratorate Guiding Cases: Introduction
As hinted above, People´s Republic of China legal landscape is changing 30. Such a thrust towards a sought-after change has pervaded (in that ran through) several legal areas 31. Along with these winds of change came a yearning crave to ameliorate the backbone of China´s criminal procedure law 32. In a nutshell: to infuse a culture of legality to its criminal procedure law. Which begs the questions: how did we get here? 33 What was the rationale behind this legality turn in People´s Republic of China? What made it possible? What is the impact (if any) that the foregoing legality turn has had on the remit of corporate criminal procedure law? To palatably (hence: thoroughly) answer these sizzling hot questions one must flesh out the pivotal role played by the Guiding Cases issued by the Supreme People´s Procuratorate back in 2010, which were paramount as to morph the Chinese prosecutor culture while catering to the creation of a brand new dispute resolution mindset from scratch.
Such a paradigm shift has heralded the break of dawn of a new era in People´s Republic of China criminal procedure law. From which a string of legality-driven corollaries can be with withdrawn, as further shown below. More on this later.
Unlawful arrests and wrongful convictions 34, a murky shadow of a not-so distant past 35, which generally worked to the advantage of prosecutors 36 (the whooping majority of whom harboured eerily malevolent attitudes towards a cohort of defendants under the guise of, and mostly pursuant of, striking hard campaigns against crime 37) paints the gloomy picture of criminal proceedings which have fallen seriously short of matching the fundamental tenets of legality. Which has spawned unfettered public distrust 38 espoused to a widespread outcry with the administration of justice in People´s Republic of China 39. It is by no means flummoxing that a groundswell of grievances demanding immediate reforms 40 in the purview of criminal procedure law 41 sprouted all over People´s Republic of China 42. As pointed out above, a paradigm shift was keenly needed.
Such a paradigm shift was set in motion by the Guiding Cases issued by the Supreme People´s Procuratorate back in 2010, whose fundamental tenets will be skeletally remarked upon in the subsequent sections of this paper.
2.1. The impact of Supreme People´s Procuratorate Guiding Cases on the creation of a legality-driven criminal procedure law in China: Brief (thumbnail) sketch
Given the (boundless?) expansion of the respondeat superior liability 43, there is (was) a perceived need to bestow upon corporations the universe of procedural defences originally allotted to individual defendants in criminal procedure law 44. In a nutshell: procedural fairness and procedural justice, which, taken together, were brought about by the foregoing Guiding Cases 45 issued by the Supreme People´s Procuratorate as far back as 2010.
The Guiding cases 46 resonate (d) with the protection 47 of basic due process 48 rights. The issuance of guiding cases 49 coincided with a generational personnel overhaul within People´s Republic of China legal apparatus 50. Its overriding goal was (is) to promote judicial practices 51 commensurate with the fundamental tenets of a healthy rule of law. Which is nothing but formulaic. Rule of law, being both a catch-all concept and all-encompassing idea 52, amounts to a beacon (and foremost as a lighthouse) of justice 53 which defendants (including corporations) tend to rely upon in criminal proceedings 54. A lesson that the great bulk of Guiding cases has neither lost sight of nor has forsaken.
Against this background, the Guiding Cases strived (and are still striving) to ensure procedural due process in criminal procedure law in People´s Republic of China. To that end, the Supreme People´s Procuratorate (SPP) 55 has issued a batch of Guiding Cases to stamp out (and thus halt) prosecutorial misconduct while catering to the creation of a robust culture of protection of basic procedural rights premised in an unshakeable foundation of legality. Against the backdrop of which both prosecutorial (and police misconduct), which, taken together, have given rise to a sheer number of wrongful convictions in a not-so distant past, are to be weeded out (and therefore swept aside) from the realm of criminal procedure law.
The Guiding cases therefore do not belie the, in that they do not fall short of matching the, propelling force that is deeply woven into its fabric: ensure social stability 56 and social harmony 57 in a gargantuan country that would be otherwise ungovernable absent such procedural guidelines.
Which prompts the question: why are the foregoing procedural guidelines so momentous in China´s modern criminal procedure law? There is an eye-catching cluster of Guiding Cases that epitomize the importance of these procedural guidelines as to strive for overall fairness in China´s criminal procedure law. Insofar Guiding Cases play a key role in spawning procedural justice (and procedural fairness) on the operation of the Chinese criminal system, they should be extended to corporate criminal procedure law. Let us take a bird´s eye view at them.
Guiding Cases are mostly related with the collection of evidence (the great bulk of which concerned with the procedural aspects of death penalty). Whilst they are bereft of binding effect in a legal sense, Guiding Cases (either those issued by the SPP or those issued by the Supreme People´s Court (SPC) 58 bear on the judicial operators’ functional activity 59.
Guiding Cases, being a politically-charged tool (that at first blush 60 run counter the French-laden principle of separation of powers 61) to beget both procedural fairness and procedural justice, seek to nudge 62 prosecutors towards more legal avenues 63 in criminal procedure law 64. It is thus hardly befuddling that prosecutors are keenly urged to uphold the public interest (mirrored in the creation of clean, seamless and fuss-free criminal proceedings) while quelling abuses perpetrated by unscrupulous officials and brushing aside shady corporate interests that run afoul with the general interest of People´s Republic of China.
No surprise springs from the fact that Guiding Cases resonate with a fine-grained cost-benefit analysis 65 against the backdrop of which a delicate balance has been struck between private interests (grasp procedural fairness and procedural justice, which must be bestowed upon defendants in criminal procedure law) and general interests 66 (clutch social stability and social harmony in China while simmering down a lurking social unrest with the administration of criminal justice).
To cater to that, the great bulk of Guiding Cases cover a broad spectrum of procedural issues that are generally applicable to criminal proceedings 67. Amongst which stands procedural guidelines on crucially important aspects of criminal procedural law such as due process, procedural legality, nemo tenetur se ipsum accusare68, and a fair treatment to be ascribed to defendants (ideally) with no qualms whatsoever.
Anchored in, and underpinned by, robust foundations of justice as fairness 69 and human dignity 70, the Guiding Cases therefore provide clear and agreed-upon procedural guidelines to prosecutors as to promptly oust illegally obtained evidence in criminal proceedings. Chiefly evidence gleaned through utterly unlawful means. Such as torture and physical violence in an overarching sense. Which is clearly set out in SPP Guiding Case 27 71.
SPP Guiding Case 27 thus stands as the capstone of a mature and full-fledged criminal system of justice, which is currently grounded in the pillars of justice as fairness 72. Strikingly, the earth-shattering SPP Guiding Case 27 is amenable to be applied to, and is suitably tailored to, any criminal prosecution 73. Corporate criminal liability, which forms part of a broader punitive apparatus, stands as no exception.
It is my firm conviction that SPP Guiding Case 27, being one of the linchpins of a sought-after clean, seamless and fair criminal proceeding, can contribute exponentially to fizzle out (and thereby drastically curtail) the both dispiriting and jarring rates concerning wrongful convictions in People´s Republic of China.
SPP Guiding Case 27, if nothing else, can create a powerful deterrence effect 74 on unprincipled prosecutors whom seek to unlawfully balloon their criminal convictions rates with hardly any regard for its underlying fairness. Which clearly runs in non-conformity with one of the primary drivers of, and propelling forces of, SPP Guiding Cases in the first place: yield procedural fairness to China´s corporate criminal procedure law.
For that reason, unsanctioned detours (mirrored on the lack of procedural fairness evinced by those whom were allotted with the task to navigate through the uncharted waters of due process – criminal prosecutors) deserve nothing but to be severely excoriated and upbraided accordingly. Should such flagitious behaviours be perpetrated by the prosecutors, they must neither go unnoticed nor unchecked 75 (let alone unpunished 76) if China´s system of administration of justice is to meet the baseline standards of an internationally-recognized due process.
With this context in place, SPP Guiding Cases fits, hand-in-glove, to the discourse of procedural fairness and procedure fairness. Due process, which has been enduring a withering series of worldwide attacks to its core, does not fall far behind. Due process, which is a place to dwell permanently, must be attuned with the relentless combat against procedural unlawfulness in China´s corporate criminal procedural law accordingly.
If the battle against unlawfulness wages on, so too does the dream of procedural fairness, which is bound to (hopefully) find a footprint in reality as China´s criminal system of justice keeps attracting a wide global gaze 77.
The overall fairness of China´s criminal system of justice, which has experienced sizable roadblocks in the past 78, must not be bedraggled with the indelible stain of unlawfulness, which would not only dampen (worse yet: would put in jeopardy) its laudable undertaking in building a clean, fair, fuss-free and unencumbered criminal system of justice, but, and foremost, would snuff out corporations´ yearning hope to be bestowed upon procedural fairness that abhors prosecutorial misconduct in corporate criminal procedure law.
As it stands, China´s criminal system of justice is to bode well in the forthcoming future as purports, as hinted above, to scrub out any shiver of illegality while toiling towards the overriding goal to ascribe perceptions of procedural fairness upon corporations (or individual defendants) that find themselves trapped into the labyrinthic corridors of criminal procedure law. The assertion according to which China´s criminal system of justice is currently gathering pace (and therefore gaining traction) as to tune itself into the universal energies of fairness is neither unwarranted nor uncalled for.
In a bid to chime in with the universal energies of, and thereby impregnated by the spirit of, procedural fairness, which is rooted firmly in the Rule of Law, SPP Guiding Cases spearheaded a drastic overhaul (which is often coined as a paradigm shift 79) in China´s criminal system, which stretched from the outset of the previous decade to its twilight.
SPP Guiding Cases thus sought to jettison both unlawfulness and prosecutor misconduct (which is often the by-product of police misconduct 80) in criminal procedure law into deep space. SPP Guiding Cases therefore stood at the forefront of a staggering effort to throw both procedural unfairness and procedural injustice out of balance.
Whilst the underlying narrative of paradigm shifts often differ by the teller 81, SPP Guiding Cases have arguably shone a keen light on the dire need to usher in procedural fairness in People´s Republic of China criminal procedure law as the former encapsulates an invaluable tool to create a brand-new prosecutorial culture from scratch.
Against this background, SPP Guiding Cases catalyzed a much-need change not only in (a previously shoddy and watered-down) prosecutorial culture, which paid scarce attention to procedural fairness, but, and foremost, paved the way to ground-breaking legislative changes in People´s Republic of China criminal procedural law.
Amongst other momentous legislative changes (like the Administrative Punishment Law of People´s Republic of China 82 reshuffled in 2021, which will be briefly parsed further down this paper), there were comprehensive and sweeping revisions on People´s Republic of China Criminal Procedure in 2012 83 and on People´s Republic of China Procurators Law in 2019 84 catalyzed by SPP Guiding Cases of 2010. From which several fairness-fraught corollaries can be withdrawn accordingly, as follows.
3. Fairness-fraught corollaries that can be withdrawn from the legality turn catalyzed by the SPP Guiding Cases: The right to a fair trial and the right to an effective defence should be allotted to corporations
The right to a fair trial and the right to an effective defence in criminal proceedings lie at the heart of the fairness-fraught Criminal Procedure Law of China (art.º 11.º, art.º 12.º and art.º 14.º). Which derives, as hinted above, from the legality turn set in motion by the SPP Guiding Cases that harkens back to 2010. Corporate criminal procedure law must stand as no exception.
In this respect, there is an agreed-upon consensus that both the right to a fair trial and the right to an effective defence in criminal law settings comprise 85: i) the right to remain silent; ii) the impossibility of convicting a defendant based solely upon his confession in the absence of other smoking-gun evidence (art.º 55.º of Criminal Procedure Law of China) iii) the right to be represented by an attorney at law or an lawyer in criminal proceedings 86 (art.º 14.º, and art.º 190.º of Criminal Procedure Law of China); iv) impossibility to extort confessions by torture and to collect evidence as a result of threat, enticement, deceit or other unlawful inflicted upon the defendant (被) in criminal law settings 87 (art.º 56.º of Criminal Procedure Law of China).
The judicial interpretations 88 issued by the Supreme Court of People´s Republic of China (中華人民共和國最高法院頒布的司法解釋) 89 encapsulate a penchant for extending the set of criminal procedural law guarantees ascribed to natural persons (such as the right to a fair trial and, foremost, the right to an effective defence in criminal proceedings) to Units or corporations. Such a stance resonates with one of the keystones of China´s “Socialist Rule of Law” 90, which deserves nothing but a spate of unfettered plaudits.
Against this background, the extension of the principle of nemo tenetur se ipsum accusare to both Units and Organizations does neither seems unwarranted nor uncalled for 91. Which, if endorsed by the higher echelons of the Chinese judiciary, is amenable to yield a number of reputational benefits (amongst which stands trust 92 and trustworthiness 93) to (on) the (often misunderstood and poorly latched on) Criminal Procedure Law of China.
3.1. Corporate compliance programs amount to defences to exclude or mitigate the Unit´s or Organization´s corporate criminal liability
The dire need of effective compliance programs is a social reality that is not to be bogged down to the United States of America 94. Which, considering what has been said earlier in this paper, hardly amounts to a bewildering statement. As stated in Part I of this paper, there is no such thing as an ethical corporate citizen devoid of, and detached from, brawny foundations of an ethical-fraught and law-abiding corporate governance 95. They do not collide. Rather, they (must) dovetail seamlessly. Better yet: the lack of an effective corporate governance 96 (and hence the lack of an effective corporate compliance program 97) paves the way to corporate criminal liability 98.
Though no reference whatsoever to corporate compliance programs is made in the remit of both corporate criminal procedure law of China and criminal law of China, the same cannot be said in regards of other paramount branches of law. The wide-scope reforms undertaken in Administrative Punishment Law in 2021, albeit seemingly unrelated with criminal procedure law, play a pivotal role in gauging the degree to which a Unit or an Organization is a law-abiding company entitled to be afforded social credits on the grounds of an ethical corporate governance. Companies are thus urged to toil towards the goal of clutching the holy-grail of social credits, which is to streamline their business activities in China; in that companies are nudged 99 towards both law-abidingness 100 and ethical corporate citizenship 101 underpinning a sought-after ethical corporate culture 102.
To cater to that, People´s Republic of China Administrative Punishment Law offers a wide range of social credits out of the meaningful corporate compliance efforts undertaken by both the Units and the Organizations. The foregoing body of legislation, albeit placed at the outskirts of both criminal law and criminal procedure law, which has been approved on January 22, 2021 at the 25 th Session of the Standing Committee of the 13 th National People´s Congress, has introduced a vast assortment of amendments to the archaic Administrative Punishment Law of the People´s Republic of China of 1996 103. Such an earth-shattering body of legislation has entry into force on July 15, 2021 104.
Amongst several important legal provisions enshrined in People´s Republic of China Administrative Punishment Law, there is one (art.º 33.º) that stands out given its cardinal role in smoothing out the punishment (to be) inflicted upon the Unit or the Organization. Such legal provision governs the situation in which the flagitious behaviour is minor and staggering efforts have been made by the corporation to prevent the infliction of a harm unto others. Such a leniency measure stands as a by-product of an effective (and functional) corporate compliance program that deserves nothing but undeterred praise.
3.2. Fairness-fraught corollaries that can be withdrawn from SPP Guiding Cases from a prospective point of view: Will negotiated agreements hold (any) sway on the corporate criminal procedure law of the future?
Although both Units and Organizations are being consistently urged to both design of effective compliance programs 105 and to adopt 106 an ethical 107 corporate 108 behaviour 109, there is no functional equivalent of United States of America´s Department of Justice (DOJ) 110 memos´ 111 in China to grant the enforcement of such legal directives in the purview of corporate criminal procedure law. Which, in my view, comes to the expense of, and is ultimately detrimental to, the effectiveness of corporate compliance programs in the purview of corporate criminal procedure law in China.
Though People´s Republic of China has recently approved and released a Guidance on Compliance Management for Central Stated-Owned Enterprises 112 (chiefly targeting foreign multinational corporations that aim to do business with wholly State-owned companies headquartered in China), such a body of legal directives hardly has enough momentum to stand on its own as a full-fledged mechanism amenable to soothe out the punishment (if any) inflicted upon Central Stated-Owned Enterprises. Overall, such a manual of good practices, however redolent with ambrosial intentions, amounts to soft law113 with scarce to none binding effect on corporations.
To the extent that the cooperation between companies and the government must be both fruit-bearing and amenable to instill a deterrence effect 114 upon wrongdoers, the future legal framework concerning negotiated agreements in China must, to some extent, emulate, mutatis mutandis, the ground-breaking Yates Memo 115. Against the background of which the cooperation 116 between Units and Organizations with the Chinese Public Prosecution Office would be a mitigating factor 117 to the former. The mitigation factor stands as an intellectual lodestar of the corporate criminal procedure law framework of several jurisdictions such as Spain 118, Italy 119 and France 120 to name a few. Jurisdictions from which People´s Republic of China could seek inspiration.
4. Concluding remarks
§§ The relationship between a law-abiding corporate governance and a to-be-avoided corporate criminal liability has shown to be reciprocal.
§§ To avoid falling into the trap of corporate criminal liability, Chinese Units and Organizations must embrace a law-abiding corporate governance, whose paramount importance has been laid bare by remarkably sad events.
§§ The design of effective corporate compliance programs draws on a robust, comprehensive and full-fledged law-abiding corporate governance, bereft (and absent) of which the former would be wrapped in tokenism thereby paving the way to corporate criminal liability.
§§ People´s Republic of China prospective lawmakers and policymakers must be allotted the duty to enact legal provisions to govern the sizzling hot topic of the mitigation of corporate criminal liability pursuant an adoption of an effective corporate compliance program.
§§ Procedural fairness and procedure justice are crucially important as to carve out a seamless, fuss-free and fair criminal proceeding, which must rest upon the seemingly threadbare (yet of momentous importance in the remit of criminal procedure law) due process.
§§ SPP Guiding Cases (in conjunction with SPC judicial interpretations) catalyzed a seismic shift in China´s criminal procedure law both from a perspective and prospective standpoint.
§§ SPP Guiding Cases resonate with a great leap forward when it comes to drastically stamping out a both botched and below-standard prosecutorial misconduct (which is often the by-product of police misconduct) that now belongs to the distant (yet murky) past.
§§ Hardly any surprise stems from the fact that SPP Guiding Cases were at forefront of a herculean effort to bestow upon criminal defendants (amongst which stand corporations) a much-needed procedural fairness and procedural justice, which are the foundations upon which stands due process: an interplay that prospective lawmakers must never lose sight of much less downplay.
Acknowledgement:
A special thanks to Dr. Leong Cheng Hang for her unwavering support.
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Notes
在此背景下,本文旨在全面回答两个的论题:首先,公司治理(和公司合规)在多大程度上降低了(最重要的是胜过)公司刑事责任。 其次,最高人民法院指导性案例是否以及在多大程度上促进了中华人民共和国刑事诉讼法的巨变。
反之,本文的一个中心论点是,可以从最高人民法院指导性案例中取出一系列充满公平性的推论,以绘制出实现中华人民共和国程序公平和程序正义基线标准的前进道路——中国公司刑事诉讼制度。
Author notes
Editor-in-chief: 1 (VGV)
Reviewers: 2
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