A Study on the Legitimacy of “Compliance-Based Non-Prosecution”: A Perspective from the Purpose of Punishment

“合规不起诉”的正当性研究：以刑罚目的为视角

This paper examines the legitimacy of the “compliance-based non-prosecution” system, focusing on the theoretical framework of punishment purposes. Traditional theories, such as the restoration of legal interests and conventional punishment theories, have not adequately explained the legitimacy of compliance-based non-prosecution. However, situating compliance-based non-prosecution within the expressive theory of punishment may offer a more effective explanation of its justification. Expressive punishment theory views crime as an expression of disdain for legal order, with punishment acting as a repudiation of that disdain. Therefore, when a corporation implements an effective compliance plan and does not express contempt for legal norms, punishment may be waived. Furthermore, the paper suggests that this system achieves a balance between state oversight and corporate self-governance, facilitating harmony between criminal law and social governance.

本文探讨了“合规不起诉”制度的正当性，聚焦于刑罚目的的理论背景下。法益恢复理论与传统刑罚理论未能充分解释合规不起诉的正当性。而将“合规不起诉”置于表达式刑罚观框架中，可能更能有效说明其正当性。表达式刑罚观视犯罪为一种对法秩序的蔑视表达，而刑罚则是对这种蔑视的否定。因此，企业在符合有效合规计划的情况下，若未表达对法规范的蔑视，可以免予刑罚。本文进一步指出，这种制度能够在国家监管与企业自我治理间实现平衡，有助于刑法与社会治理的和谐。