Summary:Crimes endangering production safety that violate the bottom line of social fairness should not be applied in principle to the compliance non-prosecution system of enterprises involved in the case. Administrative compliance is more in line with the practical needs of production safety supervision than criminal compliance. At the same time, there are still controversies in the current standards for filing cases of crimes such as major liability accidents, and there are special circumstances in individual accidents, and the compliance non-prosecution system of enterprises involved in cases can be used as a mechanism for relevant personnel to be exempted from criminal punishment. Keywords:Safety; corporate compliance; compliance non-prosecution; administrative compliance; Criminal complianceCLC Number:d925.2Literature Symbol Code:a
In recent years, procuratorial organs at all levels have vigorously promoted the compliance non-prosecution system for enterprises involved in cases, which can reduce the impact of anti-crime work on the normal business activities of enterprises involved in cases, and play a positive role in stabilizing workers' employment and economic development. At the same time, some people in the legal profession oppose the trend of corporate compliance from the perspective of not interfering in the establishment and business activities of enterprises. At a time when China's compliance non-prosecution system for enterprises involved in cases is still being explored and improved, it is necessary to maintain a cautious attitude towards it. A worthy question is whether the compliance non-prosecution system of the enterprises involved in the case is applicable to the crimes of endangering production safety represented by the crime of major liability accidents? Judging from the first four batches of typical compliance cases of enterprises involved in cases released by the Supreme People's Procuratorate, most of them are economic crimes such as collusion in bidding and counterfeiting of registered trademarks, and there is only one case of crimes endangering production safety, "the case of major liability accidents involving Kang Moumou and others of Company Z in Suizhou City". The harmful consequences of crimes endangering production safety are mainly manifested in the fact that workers are the most harmful, and the harm to society is great. Over the years, the regulatory authorities have been emphasizing the "heavy discipline and chaos". In 2014 and 2021, the Work Safety Law was amended to increase the punishment of the enterprises responsible for the accident and their responsible persons, and to serve as a warning to the whole society through severe penalties. Therefore, in order to maintain the consistency of China's laws and policies, it is necessary to carefully consider the introduction of a compliance non-prosecution system for enterprises involved in cases of crimes endangering production safety.
1. In principle, it is not appropriate to apply the compliance non-prosecution system for enterprises involved in casesIn principle, there are several reasons why the compliance non-prosecution system of enterprises involved in cases should not be applied to crimes endangering production safety:
(1) Crimes endangering production safety cross the red lineThe main purpose of implementing the compliance non-prosecution system for enterprises involved in cases is to promote healthy economic development, so that enterprises involved in cases can continue to operate, so as to protect employment. It is undeniable that the stubborn market diseases in some fields cannot be easily eliminated, for example, collusive bidding in the engineering field is more common, and related enterprises do have the bitterness of "people in the rivers and lakes, but they can't help themselves". In the first batch of typical compliance cases of enterprises involved in the Supreme People's Procuratorate, "a series of cases of collusion bidding by construction enterprises such as Xintai J Company", 6 construction enterprises were coerced by members of the first-class organization to participate in collusive bidding, and the procuratorate did not prosecute the 6 enterprises and their responsible persons. Participated in collusive bidding by the coercion of members of the organization, and did not cause bad consequences such as loss of people's lives and property, the behavior of the enterprise is "excusable".
The key issue is that the development of enterprises must be premised on ensuring the safety of workers' lives, which is a red line that cannot be crossed. It is unacceptable to cross the red line with impunity. Both administrative and judicial organs should maintain a high-pressure posture against illegal acts of production safety. This is the difference between crimes endangering production safety and other criminal acts, and it is also one of the key differences between crimes endangering production safety and other criminal acts.
(2) Crimes endangering production safety are crimes endangering public safetyFrom the perspective of origin, the compliance non-prosecution system of enterprises involved in cases can be said to be tailor-made for market entities that violate the law and commit crimes in economic activities, so it is mainly applicable to economic crimes. Article 3 of the Guiding Opinions on the Establishment of a Third-Party Supervision and Assessment Mechanism for the Compliance of Enterprises Involved in Cases (for Trial Implementation) (hereinafter referred to as the "Guiding Opinions") provides that the third-party supervision and assessment mechanism applies to cases involving "economic crimes, crimes abusing public office, etc." involving market entities. The word "etc." here should not be interpreted broadly, and in principle should be limited to Chapter 3 of Part II of the Criminal Law, "Crimes of Undermining the Order of the Socialist Market Economy." [1] Economic crimes are statutory offenses, which are different from natural offenses, and the crime of collusion in bidding has a lighter impact on the public's sense of security than the crime of theft and robbery, and has an emotional basis for compliance and non-prosecution.
Crimes endangering production safety belong to Chapter 2 of Part II of the Criminal Law, "Crimes Endangering Public Safety", and the nature of the crime is fundamentally different from that of economic crimes. In the case of major liability accidents, many enterprises involved in the case produced illegally and took risks, and the so-called "black-hearted bosses" only cared about making money and disregarding the lives of workers, seriously undermining social fairness and justice. If they commit the crime of undermining the order of the socialist market economy, if they are lost, they can open their minds, and the person in charge of the enterprise will repent and rehabilitate themselves, and create more employment opportunities and wealth for the society. Crimes that endanger public safety, especially crimes that endanger production safety, should be severely punished.
(3) Crimes endangering production safety are not unit crimesThe compliance non-prosecution system of the enterprises involved in the case was introduced from abroad, and one of the common problems in the localization process is that the system pursues "let go of enterprises and severely punish individuals" abroad, while China has adopted the model of "letting go of both enterprises and individuals" based on the reality of "integration of people and enterprises" of private enterprises. Although Article 3 of the Guiding Opinions stipulates that the compliance non-prosecution system of enterprises involved in cases is applicable to both cases of crimes committed by units and cases of crimes closely related to business activities committed by personnel of units, the criminal subjects of China's Criminal Law for crimes endangering production safety are only natural persons, and enterprises are not the subject of crimes, so there is no such thing as "letting go of enterprises", which is commonly used at home and abroad. "Integration of people and enterprises" is not a common phenomenon in China. For example, on February 27, 2021, a toxic gas leak occurred at Company H in Jilin City, killing five people and injuring eight others. The day after the accident, the company issued an announcement stating that the company's production and operation were normal and that the accident would not have a significant impact on the company's overall production and operation. It can be seen that whether or not to investigate the criminal responsibility of the person responsible for the accident does not necessarily affect the production and operation of the enterprise, and it is impossible to talk about "letting the enterprise go". In reality, small private enterprises in the form of "integration of people and enterprises" often have poor safety production conditions, and being shut down after an accident is not only in line with the law, but also in line with the rules of survival of the fittest in the market economy. Some scholars have pointed out that the compliance non-prosecution system for enterprises involved in cases should only be applied to enterprises, that is, unit crime cases, and individuals should be handled in accordance with the plea leniency system. [2]
It is true that it is the responsibility of enterprises to improve safe production conditions. Some scholars have suggested that crimes endangering production safety should be defined as unit crimes, and that the accident enterprises should be fined. However, the severity of the sanctions imposed on the enterprise by the criminal penalty does not necessarily exceed the administrative penalty. For enterprises, fines are the only type of penalty imposed under the criminal law, and there is no substantial difference between them and fines in the type of administrative penalty. Article 114 of the current Work Safety Law stipulates that the maximum fine for the accident enterprise can be 100 million yuan, and considering the severity of the punishment, there is no need to stipulate the crime of endangering production safety as a unit crime. What's more, in addition to fines, laws such as the Work Safety Law also provide for administrative penalties such as ordering the suspension of production and business, revoking licenses, and even ordering closure. If the local government decides to close down the enterprise involved in the case, the basis for the compliance and non-prosecution of the enterprise involved in the case will not exist.
(4) The person in charge of the enterprise has a fluke mentality about the accidentJudging from the law of accidents, serious accidents are small probability events after all. In 1931, after Heinrich's statistical analysis of a large number of cases, he proposed that on average, only 1 in every 330 similar accidents was seriously injured, 29 were slightly injured, and most accidents were not human, that is, 1 29 300, this rule is still widely mentioned today. Although many small and micro enterprises have poor safety production conditions, they have not had fatal accidents for many years. Because of this, some enterprise leaders have a fluke mentality, unwilling to spend money on the purchase of safety facilities and equipment, improve the level of safety production, and even after the first supervisor pointed out the hidden dangers of the accident, he still disagreed.
The judicial demonstration effect of the compliance non-prosecution system of enterprises involved in cases deserves attention. If the compliance non-prosecution system is applied to the enterprises involved in the accident, it may encourage some people's luck mentality. It is inevitable that some people will think: "If the safety production conditions are almost bad, there may not be an accident, and even if there is an accident, you can avoid punishment through compliance rectification." This will obviously run counter to the original intention of establishing a compliance non-prosecution system for enterprises involved in the case, which cannot become a "diamond cover" and "protective umbrella" for the person in charge of the enterprise. [3]
In reality, the probability of continuous accidents in enterprises in non-high-risk industries is extremely small. It is difficult to verify the effectiveness of the compliance rectification of the enterprises involved in the case by whether the accident will occur again. In order to prevent crimes that endanger production safety, it is more appropriate for judicial organs to adhere to the sanctions for criminal acts and play a deterrent and warning role, rather than condoning.
(5) Administrative compliance has stronger applicability than criminal complianceAt present, it remains to be seen how to connect criminal compliance and administrative compliance in the field of production safety. In March 2021, the Office of the ** Safety Committee issued the "Measures for the Evaluation of the Implementation of Production Safety Accident Prevention and Rectification Measures" (hereinafter referred to as the "Assessment Measures"), requiring all localities to organize relevant departments to carry out assessment work and form an assessment report on the prevention and rectification measures of the accident unit item by item according to the prevention and rectification measures recommended in the accident investigation report within 10 months to 1 year after the accident is closed. The essence of this assessment is that the administrative organ urges the enterprises involved in the case to comply with the rectification, that is, administrative compliance. Article 4 of the Assessment Measures specifically stipulates that, in principle, the assessment working group shall be composed of departments participating in the accident investigation, and may hire relevant professional and technical service institutions or experts to participate according to the needs of the work. The significance of this provision lies in the fact that accident investigators fully understand the causes of the accident and the problems existing in the enterprises involved, so it is most appropriate to undertake the assessment of the implementation of accident prevention and corrective measures.
The work content of the assessment working group stipulated in the Assessment Measures is similar to that of the third-party supervision and assessment organization stipulated in the Guiding Opinions, but there are significant differences between the two in terms of personnel composition, authorization method, and start-up time. If the work of the two cannot be combined, should the procuratorate refer to the assessment reports of the two before making a decision not to prosecute? If there is a discrepancy between the two, what should be done? Whether from the perspective of authority or resource conservation, since there is an assessment of the implementation of accident prevention and rectification measures led by the administrative organs, the procuratorial organs no longer need to activate the third-party supervision and evaluation mechanism.
Some scholars have pointed out that the public prosecutors of the procuratorial organs may not know the professional knowledge of a specific field, and the staff of the administrative organs may lack the professional knowledge of criminal law and the judicial rules of criminal cases, so independent third-party intermediary professionals should serve as compliance supervisors. [4] At present, the administrative authorities have a clear compliance rectification assessment system for enterprises involved in production safety accidents, and the assessment staff includes the first-class personnel involved in the accident investigation and experts in various fields, so there is no need to worry about the professionalism of the assessment, and it is not appropriate to underestimate the initiative of the enterprise in compliance rectification. If administrative compliance can be effectively carried out, criminal compliance should not be overstepped. [5]
II. The role of the compliance non-prosecution system for enterprises involved in cases under special circumstancesOver the years, administrative authorities have generally expected to use criminal means to achieve regulatory goals, and at the same time, it has inevitably increased social contradictions. For example, after drunk driving is criminalized, the excessive number of drunk driving offenders has aroused widespread concern in society. At the end of 2023, the Supreme People's Court and four other departments formulated the "Opinions on Handling Criminal Cases of Dangerous Driving While Intoxicated", which clearly proposes to implement a criminal policy of blending leniency and severity, in which leniency in accordance with the law can effectively reduce social antagonism. In the field of production safety, the crime of dangerous operation has replaced the crime of illegal operation after being criminalized, and has become the ultimate crime to punish the illegal operation of refined oil, which has attracted the attention of the academic community. The criminal law shall remain modest, and the compliance non-prosecution system of enterprises involved in cases can play a role in alleviating social conflicts under special circumstances.
(1) Mechanism for culpting the person responsible for a simple property damage accidentThe Work Safety Law is the basic law for ensuring safe production in China. Different from labor laws, work safety laws not only protect the lives of employees, but also protect the property safety of production and business operation entities. In the legal context of work safety, traditional labor safety accidents are described as production safety accidents. Article 3 of the current "Regulations on the Reporting, Investigation and Handling of Production Safety Accidents" divides the accident into four levels: particularly significant, major, large and general, according to the level of the accident. This concept is also embodied in the field of criminal law, where relevant judicial interpretations stipulate that if an accident causes a direct economic loss of more than 1 million yuan, the relevant personnel shall be investigated for criminal liability for the crime of major liability accident and major labor safety accident. Taking the deflagration accident of Zhuhai Company C as an example, there was no one in the accident, and the direct economic loss was more than 1.98 million yuan, and the accident investigation report recommended that the general manager of the enterprise and the deputy director of the production technology department should be held criminally responsible.
Some scholars have pointed out that in the practice of accident investigation, there are problems such as lack of practicability and unscientific statistical standards in determining the accident grade based on direct economic losses. [6] In the era of planned economy, out of the pursuit of the safety of state-owned property, it is reasonable for the ** department to hold accountable the employees of subordinate state-owned enterprises who cause property losses. In the era of market economy, after a private enterprise causes property losses due to employee negligence, there are legal defects in the first department to punish the enterprise and its responsible person. If an employee's negligence causes property damage, the enterprise has the right to claim compensation in accordance with the law, and it is not necessary to pursue the employee's criminal liability. Therefore, especially for the person in charge of the enterprise, the main purpose of establishing the crime of major labor safety accidents should be to protect the safety of workers' lives, rather than the safety of enterprise property. It is suggested that relevant laws, regulations, and judicial interpretations should be amended in the future, so that direct economic losses are no longer used as an indicator for the classification of accident grades, and the criteria for determining the harmful consequences of crimes endangering production safety should be adjusted. [7]
At present, for an accident that simply causes property damage to an enterprise, if the accident investigation report recommends that the judicial organ pursue the criminal responsibility of the responsible person, the procuratorate may initiate a third-party supervision and assessment mechanism to assess and inspect the safety production situation of the enterprise involved, and make a decision not to prosecute the responsible person based on the written report of the compliance inspection. The compliance non-prosecution system of enterprises involved in cases can play a role in maintaining the modesty of the criminal law and alleviating social conflicts, and serve as a mechanism for relevant personnel to be exempted from criminal punishment.
(2) Forgiveness of the responsible person based on the circumstances of the special accidentThe significant difference between the crime of major liability accident and the crime of collusion in bidding and counterfeiting of registered trademarks is that the subjective aspect of the crime is negligence. The due diligence of enterprise safety production management personnel can reduce the probability of accidents, but it is difficult to absolutely avoid accidents. In reality, some accidents have special circumstances, and even if there are workers, the relevant personnel can not be held criminally responsible. For example, in the case of the major liability accident case of Kang Moumou et al., Company Z of Suizhou City, a typical case of compliance of enterprises involved in the case of the Supreme People's Procuratorate, the procuratorate made a decision not to prosecute Kang Moumou and others in accordance with the law after compliance rectification of Company Z in Suizhou City.
In this accident, Company Z signed a contract for the dredging of the sewage ditch with Cao's cleaning business department, and the toxic gas in the sewage ditch overflowed during the dredging operation between Cao and the employee Liu, resulting in the poisoning and death of the two and Wu, an employee of Company Z who came to the rescue. The particularity of this case lies in the fact that although the accident occurred in the factory area of Company Z, the dredging of the sewage ditch was not the work of the employees of Company Z. The sewage ditch dredging contract signed by Company Z and Cao Moumou is a contracting contract, and the contractor Cao Moumou shall be responsible for the safety of the dredging operation. Sewage ditch dredging is not a high-risk industry, and the state has not established a safety production (operation) license. Even if it is found that Company Z was negligent in selecting the contractor, the degree of negligence is relatively minor. Company Z has employees who died in accidents, and there are problems such as insufficient training for employees' emergency rescue capabilities, but as far as the entire accident is concerned, it is only responsible for the expansion of the consequences of the accident. It is worth noting that the Zengdu District Branch of the Suizhou Municipal Public Security Bureau transferred the Zengdu District Procuratorate of Suizhou City for review and prosecution on suspicion of major liability accidents by Kang Moumou, the administrative director of Company Z, Zhu Moumou, the person in charge of the administrative department, and Zhou Moumou, the person in charge of the safety and environmental protection department. However, the only persons recommended in the accident investigation report to be transferred to the judicial authorities for handling were Kang Moumou and Zhu Moumou, and it was recommended that Zhou Moumou, the person in charge of the safety and environmental protection department, be punished internally by Company Z. The accident investigation team may also think that the accident was really unexpected for the safety production management personnel of Company Z, and the responsibility was relatively light.
Therefore, the occurrence of the accident is related to the safety production conditions of the enterprise and the safety awareness of the workers themselves, and it is not appropriate to blame all the relevant personnel of the enterprise. For administrative authorities, the transfer of the person in charge of an enterprise to the judicial authority can serve as a deterrent to other enterprises and facilitate regulatory work, but the consequences of punishment may be too severe for individuals. Under special circumstances, the compliance non-prosecution system for enterprises involved in cases may be applied to crimes that endanger production safety, and the procuratorate is to take the lead in urging the enterprise to improve its management level and help the relevant responsible persons avoid criminal punishment.
ConclusionThe criminal procedure system is a matter of social stability, and the process of exploration needs to be done cautiously. In the context of optimizing the business environment, the compliance non-prosecution system of enterprises involved in cases can provide opportunities for entrepreneurs who have gone astray to turn back, but it must not provide a safe haven for black-hearted bosses. When handling cases of crimes endangering production safety, the possible impact of introducing a compliance non-prosecution system for enterprises involved in cases needs to be carefully considered. Under special circumstances, this system can be used as a mechanism for relevant persons to be exempted from criminal punishment, but it should not be widely implemented, and it is necessary to put the "brake" on the compliance and non-prosecution work of the enterprises involved in the case in this field.
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