[Direct answer]In the Beijing area, it is possible, but certain conditions must be met, and compliance rectification itself is not an independent type of non-prosecution. Its legal basis is Article 177, Paragraph 2 of the Criminal Procedure Law of the People's Republic of China (amended in 2018), which stipulates discretionary non-prosecution: Where the circumstances of the crime are minor and the People's Procuratorate deems it unnecessary to impose a criminal punishment or exempt from criminal punishment according to the provisions of the Criminal Law, the People's Procuratorate may make a decision of non-prosecution. The significance of compliance rectification lies in establishing and operating an effective compliance system, eliminating systemic loopholes, and restoring damaged rights, thereby proving to the procuratorial organ that the social harmfulness of the enterprise has been significantly reduced and the likelihood of reoffending is controllable, thus supporting the judgment that no criminal punishment is necessary. The operational norms are mainly contained in the "Measures for the Construction, Evaluation, and Review of Compliance in Enterprises Involved in Criminal Cases (Trial Implementation)" issued by the Supreme People's Procuratorate and other departments on April 19, 2022, which clarifies the process of connecting the compliance plan, third-party supervision and evaluation organizations, and inspection and evaluation. In practice, whether it is possible to obtain non-prosecution typically depends on three levels of judgment: first, whether the case itself belongs to the type of minor circumstances and controllable harm; second, whether the enterprise admits guilt and accepts punishment, returns the illegal proceeds, compensates for losses, pays back taxes, and repairs the damage; third, whether the compliance rectification is genuine and effective and can withstand third-party evaluation.Criminal defense and criminal case filingYou can view similar questions in this column.

1. Problem background and typical scenarios

These types of consultations mostly come from the operators of small and medium-sized private enterprises. Firstly, the enterprises are suspected of committing crimes in areas such as invoice management, bidding and tendering, environmental protection and pollution control, and data use, and have been investigated and prosecuted. They hope to obtain a non-prosecution agreement in exchange for making rectifications. Secondly, the enterprises have been transferred for examination and prosecution, and the operators are worried about project suspensions, employee unemployment, and supply chain disruptions. Thirdly, the enterprises have never established a compliance system before, and they need to establish one during the investigation and prove its effective operation. Fourthly, there are also hidden risks in related enterprises or upstream and downstream enterprises, and they hope to conduct inspections and rectifications together with these enterprises. In addition, there are cases where the enterprise's responsible person has been approved for arrest, and the family members want to know whether the enterprise's rectification will affect the handling of the responsible person. In the practice of case handling in the Beijing area, the procuratorial organs usually pay attention to whether the enterprise is operating normally, whether the rectification is aimed at the causes of the case, whether the compliance system can be continuously operated, and whether the victims, the state or the public interests have been repaired. The rectification involving tax and invoice issues often relates to other aspects of financial and taxation.Business and contract disputes in enterprisesThe contract and financial review rules in the column overlap each other.

II. Key points of dispute

Focus One: Whether the charges and circumstances are appropriate for lenient treatment in accordance with regulations. Violent crimes and crimes endangering public safety are usually difficult to apply this approach to. Focus Two: The targeted nature of the compliance plan. Can it accurately address the institutional flaws and responsibilities of the involved parties, rather than relying on generic templates? Focus Three: The passing standards for third-party supervision and evaluation. Does the evaluation organization focus on whether the measures have been implemented, whether the records are complete, and whether the personnel have received training? Focus Four: The relationship between admitting guilt and accepting punishment and the implementation of rectification measures. The two usually need to be carried out simultaneously and mutually supportive. Focus Five: The communication rules between the enterprise and the case-handling authority during the probation period. The rectification cannot proceed independently of supervision. Focus Six: The relationship between the enterprise's being granted non-prosecution and the responsible parties being prosecuted. The two need to be evaluated separately. Focus Seven: The normalization of the compliance mechanism after the rectification is completed, to avoid formal compliance. The specific application shall be subject to the currently effective laws, regulations, and related normative documents.

III. Professional analysis by Henglue Lawyers

From the practical experience of lawyers handled by our firm, the key to securing a non-prosecution decision through corporate compliance rectification lies in making the rectification effective and verifiable. The first step is feasibility assessment. After lawyers get involved, they should first evaluate the suspected crime, the amount involved, the harmful consequences, and the role of the enterprise in the local economy and employment to determine whether there is room for negotiation and avoid investing a large amount of cost in the wrong direction. The second step is to simultaneously complete mitigating circumstances, assisting the enterprise in returning illicit gains and compensation, making up for tax arrears, compensating the victims, and restoring damaged ecological environments or social relationships, and obtaining written agreements and payment receipts. The third step is to develop a compliance plan, reconstructing systems around the involved links, such as invoice review and financial review, bidding and tender approval authority and traceability, pollution monitoring and emergency plans, and hierarchical management of data and trade secrets, and clearly defining responsible persons, timelines, and acceptance standards. The fourth step is to cooperate with third-party supervision and evaluation, organizing system documents, training attendance records, system logs, and internal audit records, and responding truthfully to inquiries from the evaluation organization. The fifth step is to participate in hearings and express opinions on the completion of the compliance plan, the effectiveness of the rectification, and the sustainability of the business. It should be noted that the value of corporate compliance rectification lies not only in securing a non-prosecution decision, but also in truly reducing the risk of being involved in criminal cases again. If it is just a formality, it is often difficult to pass the assessment stage, which will in turn affect the effectiveness of mitigating circumstances.

IV. Practical suggestions and legal basis

Action suggestions: First, after the case is filed, it is necessary to entrust a professional lawyer to evaluate the feasibility as soon as possible to avoid missing the window period for compliance initiation; Second, simultaneously implement the return of illicit gains and compensation, make up for the tax payment and repair the damage, and form complete evidence as a basis for leniency. Relevant accounting and contract rectification can be referred to for referenceBusiness and contract disputes in enterprises1. The first point is to establish a compliance management system and appoint a compliance officer to oversee it. 2. The second point is to conduct a comprehensive risk assessment and identify potential compliance risks. 3. The third point is to ensure that the compliance plan can be implemented and verified, avoiding abstract commitments. The plan should specify measures, responsible parties, and completion deadlines for each item. 4. The fourth point is to establish a rectification database and preserve institutional documents, training records, approval records, and internal audit reports. 5. During the probationary period, maintain regular communication with case-handling authorities and third-party organizations, and report progress truthfully. 6. Integrate the compliance mechanism into daily operations to establish standardized risk detection and internal reporting channels. Daily risk prevention and control can be referenced accordingly.Intellectual property protection and corporate lawColum. Legal basis: Article 177, Paragraph 2 of the Criminal Procedure Law of the People's Republic of China (amended in 2018); the "Measures for the Construction, Evaluation and Review of Corporate Compliance in Cases Involving Enterprises (Trial)" (issued on April 19, 2022); the provisions of the Criminal Law of the People's Republic of China on corporate crimes; the specific application shall be subject to the currently effective laws, regulations and relevant normative documents.

5. Henglu Law Firm's Reminder

First, the prerequisite for obtaining a non-prosecution decision through compliance rectification are that the crime is minor and the harm is controllable. Crimes that seriously endanger social order are generally not eligible for this treatment, so don't harbor unrealistic expectations. Second, the authenticity of the rectification is more important than the elegance of the documents. Third-party assessors will conduct on-site inspections, interview personnel, and randomly check records. Third, the implementation of compensation and reconciliation should be completed before key deadlines. Delays will significantly weaken the mitigating effect. Fourth, corporate responsibility and the responsibility of responsible persons should be evaluated separately. Even if the company is not prosecuted, the responsible person may still be held accountable, so defense plans should be prepared simultaneously. Fifth, the value of a compliance system lies in long-term prevention. It is recommended that companies establish criminal compliance mechanisms during normal operations rather than retroactively establishing them after a case occurs. Sixth, for enterprises operating in multiple regions or with upstream and downstream enterprises, related risks should be investigated simultaneously to prevent them from being involved in other cases after rectification.

VI. Frequently Asked Questions

Q1: What is the legal basis for compliance rectification?

The legal basis for this is the discretionary non-prosecution system stipulated in Article 177, Paragraph 2 of the Criminal Procedure Law of the People's Republic of China. The operational norms can be found in the "Measures for the Construction, Evaluation and Review of Corporate Compliance in Criminal Cases (Trial)" (issued on April 19, 2022).

Q2: If the rectification meets the requirements, will there definitely be no prosecution?

Not necessarily. The evaluation of eligibility is an important basis, but the procuratorial organ still needs to make a decision based on the circumstances of the crime, the harmful consequences, the plea of guilty and the situation of compensation. The evaluation conclusion does not necessarily lead to non-prosecution.

Q3: Who will conduct the third-party supervision and evaluation?

The procuratorial organ shall invite the Management Committee of the Third-Party Mechanism to randomly select personnel from the directory of professionals to form an evaluation organization, which is responsible for investigating, evaluating, supervising and inspecting the effectiveness of the compliance plan and issuing a report thereon.

Q4: Can the enterprise still operate normally during the rectification period?

In most cases, this is possible. Compliance rectification is usually based on the premise of maintaining the operation of the enterprise and ensuring employment, but the involved processes and relevant personnel may need to be adjusted. The specific requirements will depend on the demands of the case-handling authority and the enterprise's rectification plan.

Q5: What else needs to be done after the rectification is completed?

The compliance mechanism should be normalized, and the risk investigation, approval traceability, and internal audit systems should be continuously operated. Additionally, the company should accept follow-up visits and inspections as required to prevent similar illegal and irregular behaviors from occurring again.

The above content is based on the judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglue Law Firm about specific situations.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the necessary evidence to avoid missing the statutory time limit.Criminal defense legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In case of disputes, please consult a practicing lawyer in time.