[Direct answer]In the Beijing area, after the company's business is identified as a crime, seeking non-prosecution requires addressing four aspects: the nature of the corporate crime, the fact that the circumstances are significantly minor, compliance rectification, and criminal policy. According to Article 16 of the Criminal Procedure Law of the People's Republic of China (amended on October 26, 2018), if the circumstances are significantly minor and the harm is not significant, it will not be considered a crime, and criminal responsibility will not be pursued. Article 177 stipulates statutory non-prosecution and discretionary non-prosecution. Enterprises can strive to be identified as not constituting a corporate crime, or to have insufficient evidence for prosecution, or to obtain relative non-prosecution through compliance rectification. The specific path needs to be combined with the nature of the behavior and the evidence. It is recommended to refer to the criminal defense column for more details.

I. Problem Background and Typical Scenarios

Such problems are often encountered in the following situations: first, the business model operates in a gray area, such as the business model being suspected of illegal operation or illegal fund-raising; second, the personal behavior of the unit's employees is expanded to be identified as a crime of the unit; third, the enterprise is involved in tax-related issues, infringement of intellectual property rights, or environmental pollution and is subject to criminal prosecution; fourth, related-party transactions and fund transfers are suspected of embezzlement or abuse of official position; fifth, efforts are made to obtain lenient treatment for corporate-related cases in the context of compliance reform. When handling similar cases in the Beijing area, the criminal justice system often combines the evaluation of the involved enterprise's compliance rectification to determine the path of acquittal or lenient punishment, and the relevant criminal procedures can be referred to for reference.Criminal defenseColumn.

II. Key points of contention

First, the boundary between corporate crime and individual crime. It is necessary to examine whether the act reflects the corporate will and whether the benefits belong to the corporate entity. Second, whether the act meets the threshold for criminal prosecution, such as whether the amount and circumstances are significantly minor. Third, whether the evidence is sufficient. If the facts are unclear and the evidence is insufficient, it is possible to argue for a non-prosecution based on reasonable doubt. Fourth, the effectiveness of compliance rectification. If the rectification is in place, it is possible to argue for a relative non-prosecution. Fifth, the application of criminal policies. In cases involving enterprises, a lenient approach should be taken in terms of arrests, prosecutions, and detentions. The specific provisions shall be subject to the currently effective laws, regulations, and judicial rulings. For issues related to corporate governance, reference can be made to relevant materials.Business and contract disputes in enterprisesColumn.

III. Professional analysis by Henglue Lawyers

Based on the practical experience of handling criminal cases involving enterprises at our firm, there are three common paths to seeking non-prosecution. Firstly, qualitative defense, arguing that the act is either a normal business operation of the unit or an individual's behavior, does not meet the constitutive elements of a unit crime, or the circumstances are so minor that it is not considered a crime; Secondly, evidence defense, putting forward the opinion of non-prosecution due to unclear facts and insufficient evidence, focusing on questioning key documentary evidence, appraisal opinions, and subjective knowledge evidence; Thirdly, compliance defense, for enterprises suspected of crimes but capable of rectification, promoting the enterprises to carry out compliance rectification, and seeking relative non-prosecution after third-party supervision and evaluation. In practice, lawyers of our firm usually intervene at the investigation stage, sort out the business model, fix compliance materials, communicate with the procuratorial organ, grasp the golden communication period before review and prosecution, and pay attention to distinguishing the responsibilities of the unit and the responsible persons to avoid indiscriminate accountability. Based on the characteristics of the industry and the structure of evidence, we develop personalized non-prosecution plans. For enterprise commercial arrangements, reference can be made to the following:Business and contract disputes in enterprisesColumn.

IV. Practical suggestions and legal basis

Action suggestions: First, immediately sort out the business model and the flow of funds after the incident and distinguish between the actions of the unit and individuals; Second, entrust a lawyer to get involved as soon as possible and submit a legal opinion on non-prosecution before the review and prosecution; Third, promote compliance rectification, establish internal control and compliance systems, and relevant governance can be referred to for referenceSpecial services and other casesThe four key points are: first, cooperate with the investigation but make a cautious statement to avoid admitting any improper actions; second, pay attention to the disposal of the involved assets to avoid expanding the losses; third, strictly abide by the legal procedures and avoid making any statements that may be used against them in criminal proceedings; fourth, cooperate with the investigation but make a cautious statement to avoid admitting any improper actions; fifth, pay attention to the disposal of the involved assets to avoid expanding the losses. In terms of legal basis, Article 16 of the Criminal Procedure Law of the People's Republic of China stipulates the circumstances in which criminal responsibility will not be pursued, and Article 177 clearly states that if the suspect has no criminal facts or the circumstances are minor, he/she may not be prosecuted; relevant normative documents on compliance reform of the involved enterprises also provide an applicable path for relative non-prosecution.

5. Henglue Law Firm's Reminder

Risk Warning: Firstly, the nature of corporate-related crimes is complex, and the confusion of corporate and individual responsibilities will amplify the risks, so it is necessary to clarify them as soon as possible. Secondly, there is a time window for regulatory rectification, and delaying it may result in missing the opportunity for a relative non-prosecution. Thirdly, don't believe in "smoothing over relationships" easily. Compliance and evidence are the right way to deal with it. Fourthly, after the involved assets are sealed and frozen, it is necessary to claim the distinction of legitimate property in time. It is recommended that enterprises implement compliance in advance during their operations and consult the similar columns on the official website of Beijing Henglu Law Firm as soon as possible when encountering criminal risks.

VI. Frequently Asked Questions

Q1: Can the company seek non-prosecution if it is found guilty of a crime?

It's possible. If the circumstances of the act are significantly minor and not considered a crime, if the evidence is insufficient, or if the compliance rectification measures have been implemented, the defendant may respectively seek statutory, doubtful, or relative non-prosecution. According to Articles 16 and 177 of the Criminal Procedure Law, there is corresponding space for exoneration or leniency. However, whether the crime is committed by a unit or an individual, and whether the threshold for criminal prosecution has been reached, directly affect the outcome. This requires evaluating the evidence and not assuming victory in advance.

Q2: What evidence do I need to prepare to fight for a non-prosecution?

The following materials should be prepared: business contracts and cash flow statements, to prove the operating model and the ownership of profits; internal decision-making documents, to prove whether they reflect the unit's will; compliance systems and rectification materials; evidence isolating the employee's personal behavior from the unit; and evidence proving that the amount and impact of the case are significantly minor. The more materials that can distinguish between the unit and the individual and prove compliance, the more conducive they are to the argument for non-prosecution. For issues involving corporate governance, reference can be made to the relevant provisions.Business and contract disputes in enterprisesColumn.

Q3: How much does it cost to secure a non-prosecution agreement?

The attorney's fees are negotiated based on the complexity of the case, the charges involved, and the workload, with no standardized rates. For corporate cases, the fees are usually higher than those for ordinary individual crimes, as it requires sorting out the business operations and promoting compliance rectification. However, if the attorney's role is limited to providing legal opinions on non-prosecution and communicating with the prosecution, the fees can be relatively controlled. It is necessary to reach a written agreement with the law firm on the stages and billing methods. The specific fees should be evaluated based on the case circumstances, and it is recommended to first consult on the scope of the services before providing a quote.

Q4: How long does it usually take to secure a non-prosecution agreement?

The timeframe depends on the stage of the legal process. During the investigation stage, early communication is crucial; during the review and prosecution stage, it is the key period to strive for a non-prosecution decision. The procuratorial organ usually reviews the case for one to one and a half months, and the return for supplementary investigation will prolong the process. For compliance rectification cases, the cycle is even longer, often lasting several months. Seizing the window of communication with the prosecutor before the review and prosecution stage can significantly affect the outcome.

Q5: How should we deal with the risk of the company being convicted?

The first step is to immediately distinguish between the actions of the unit and those of individuals, and sort out the business evidence. The second step is to hire a lawyer during the investigation stage to seize the golden communication period. The third step is to assess whether the conditions for compliance and rectification are met and actively promote them. The fourth step is to submit a non-prosecution opinion based on the qualitative analysis or weak evidence. The fifth step is to pay attention to the disposal of the involved assets and subsequent civil risks. For enterprise commercial arrangements, you can refer to the relevant provisions.Business and contract disputes in enterprisesColumn.

The above content is based on the compilation of judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the courts may differ, which may affect the conclusions. Welcome to consult Henglue Lawyers 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 relevant evidence, to avoid missing the statutory time limit.Criminal defense legal services·Beijing Henglu 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 the event of a dispute, please consult a practicing lawyer in a timely manner.