Criminal Compliance Incentives I: Models of Compliance-Based Exculpation

Against the backdrop of policies aimed at strengthening judicial protections for private enterprises, China’s procuratorial authorities have begun to explore the implementation of a system of non-prosecution based on corporate compliance. Unlike the traditional model of discretionary non-prosecution—where the primary justification lies in the minor nature of the offender’s conduct and the possibility of exemption from punishment under the Criminal Law—the core rationale for compliance-based non-prosecution is different. In this model, non-prosecution is contingent upon the enterprise’s active cooperation and effective remediation: the company has established a corporate compliance program, carried out comprehensive reforms of its management systems, addressed institutional weaknesses and regulatory blind spots that facilitated the offense, and taken effective measures to prevent the recurrence of similar misconduct. Through compliance oversight and evaluation procedures, procuratorial authorities may ultimately decide not to prosecute enterprises that have established and operated an effective compliance program. The application of this compliance-based non-prosecution framework thus makes corporate compliance itself the direct legal basis for a decision not to pursue criminal liability, thereby conferring on compliance an important function of exculpation.