Criminal compliance with specific issues, also known as corporate internal compliance investigations, refers to the appearance of certain specific signs, such as the receipt of reports and accusations by the company, or the receipt of information from regulatory authorities or even judicial organs initiating investigation procedures, indicating that the company or corporate executives are facing Larger risk of criminal charges for specific crimes. The company hires lawyers to conduct special investigations on specific transactions or business behaviors to diagnose the nature of violations and violations, identify those responsible for violations, and propose loopholes and defects in the company's internal control mechanism The rectification suggestions lay a foundation for the company to improve its compliance system. In order to better regulate and guide the development of future compliance services, from the practical level, we now extract the paths, methods and precautions of lawyers in the process of developing specific criminal compliance legal services for specific issues for discussion and exchange with you.
Service items and basic procedures in criminal compliance with specific issues
(1) Service items
According to the service objectives of criminal compliance for specific issues and the actual needs of enterprises, the service items that lawyers can provide are as follows:
1. The prescribed actions include:
1) Investigate and diagnose whether the specific transaction or management behavior of the company is suspected of criminal crimes, and identify those responsible for violations; 2) For specific crime risks that may arise, propose targeted response plans and remedial measures within the legal framework 3) According to the corporate management issues exposed by specific issues, from the system level, put forward suggestions for establishing and improving rules and regulations or changing business models.
2. Optional actions, including:
1) Instruct or assist in the implementation of response plans and remedial measures; 2) Instruct the company to collect, sort, and retain relevant evidence that can prove the company’s innocence or minor guilt and realize the separation of responsibilities between the company and its employees if a criminal risk erupts; 3) Staff in key or risky positions carry out basic training to help employees in key positions of the enterprise establish risk awareness, understand the boundaries of specific crimes and non-criminals that may be touched, and master the basic knowledge of responding to criminal investigations.
Among them, item 3 of the aforementioned optional action actually includes the service content of "criminal investigation response compliance". Normally, once the company is assessed as having a greater criminal risk, it can be said that counseling the company to respond to criminal investigations is an inevitable one. Service items, therefore, a simple criminal investigation response guidance is included here as one of the optional actions for criminal compliance with specific issues.
On the basis of clarifying the service content and actions, the above service items and content can be combined into different packages in advance, and the corresponding charging methods and charging standards can be combined to form the basic materials for external promotion and publicity. Once a company has service needs and intentions, we can quickly come up with customized service plans and quotations.
(2) Basic service steps
From an overall point of view, the basic workflow includes the following steps:
The first step is to accept the case and set up a service team based on the type of transaction to be reviewed and estimated workload;
The second step is to investigate and collect evidence, and restore the specific details and patterns of specific business or transaction behaviors in detail;
The third step is to summarize all research materials, and at the same time comprehensively search for evidence or materials such as laws, regulations, industry standards, cases, professional articles, etc., to diagnose whether there are criminal risks and identify the specific responsible person;
The fourth step is to issue a criminal compliance report;
The fifth step is to guide and assist the implementation of response measures and plans (if required by the enterprise).
Refine, standardize and guide the service process from the necessary text
In the entire compliance service process, from the perspective of risk prevention and control and service traces, it is recommended to have and standardize the following service texts at least to force the refinement and standardization of services.
1. In the process of receiving cases, prepare a standardized criminal compliance special legal service agreement
In the process of drawing up the agreement, attention should be paid to clarify the review object, the lawyer's work content, service methods, service scope, confidentiality clauses, risk notification, etc. These clauses should be as detailed as possible to avoid disputes. At the same time, we should also pay attention to the agreement on the deadline of the entrustment period. We suggest to choose the following deadlines according to actual needs: The first one is to evaluate a possible service period, and the service is terminated when the period expires; the second is to The deadline is the day when the lawyer submits the criminal compliance report; the third, the deadline is the completion of all services. If you choose the third method, you must set a specific standard on how to determine that the service has been completed, such as requiring the company to confirm the completion of the service.
2. In the research link, the main work of lawyers at this stage is to obtain evidence to restore in detail the transaction or business behavior to be reviewed. Among them, evidence collection includes both self-retrieving and entrusting companies to provide, including internal file review of the company, as well as investigations of external third parties. From a tangible point of view, we are reminded to prepare at least the following service texts:
1) Minutes of the preliminary symposium or special memos. After reaching the entrustment intention, the service team has a preliminary formal discussion with the company to understand the basic situation, determine the follow-up work arrangement, and form the meeting minutes or special memos, and send the entrusting party to sign for confirmation and affix the official seal. Through the form of meeting minutes, the service content and service methods of lawyers can be further fixed, and according to the preliminary discussion situation, some risk notifications, reminders and other contents of the omissions in the previous links can be checked and missing, and the entrustment agreement is coordinated to be the follow-up work. One of the main reasons for this.
2) Survey checklist. From the perspective of fully restoring the transactions or business activities to be reviewed, issue a detailed investigation list to the company, including but not limited to documentary evidence, electronic data, accounts, external contracts, documents with third parties, etc. related to the matters to be reviewed. In the list, the types of documents and form requirements that need to be provided by the enterprise are fully listed, and at the same time, a delivery receipt for the investigation list is prepared. Of course, as the work progresses, the company needs to provide new materials, and the company can once again provide a supplementary survey list.
3) When receiving materials, draw on the form and elements of the seizure list in criminal cases to prepare the "Material Receipt List". At the same time, after the company provides all the materials, the company is required to issue a "Letter of Commitment on the Authenticity, Accuracy and Completeness of the Documents", and the company promises to ensure the truthfulness, accuracy and completeness of all the materials and documents provided, and attach the documents. And material details, and further clarify the promise object.
4) The entrusting party's written explanation on the failure to submit materials. If there are materials that are required but not provided by the company, and the corresponding materials are of great value to the lawyer’s diagnosis, the company should be required to issue a written statement, clearly because the company has failed to provide it for its own reasons, so as to eliminate the lawyer’s own risk.
5) Transcript of conversation. The main application areas of conversation transcripts include two types: one is regular reception; the other is to collect evidence by talking to company employees and other personnel to assist in research and evidence collection. In the production of conversation transcripts, it is recommended to strictly follow the standards for lawyers to collect witness testimony in the criminal business operating procedures.
6) Standard document retrieval report and directory. While investigating, lawyers need to collect and sort out relevant laws and regulations, regulatory documents, industry standards, cases, professional articles, etc., to form a normative basis for lawyers' diagnosis. It is recommended that during the collection process, a standardized document retrieval report and catalog should be made synchronously to facilitate access at any time and reduce the workload. At the same time, the retrieved basis will be reflected as a part of the criminal compliance report and used as a component of the manuscript.
7) Work log. It is recommended that during the service process, the team lawyers should record the work log, and ask the designated staff of the entrusting enterprise to sign and confirm at the key service node. The advantage of such a work log is that it can not only record the lawyer's workload objectively, but also serve as a basis for judging whether the lawyer has completed the compliance service in accordance with the agreement.
3. In the diagnosis link, the lawyer's core service results will be carried and reflected in the criminal compliance report, so the preparation of the criminal report is particularly critical. It is recommended to learn from the model of civil due diligence report, specifically:
1) The basic composition includes at least the following key contents: foreword (working methods, prerequisites for making opinions, disclaimer, etc.); basic instructions (necessary definitions, explanations, review materials and basis lists); "client "Introduction"; "Relevant transactions and business activities" (The transaction and business links must be objectively and comprehensively restored based on existing materials, so that every sentence can be traced); review conclusions (including criminal law risk diagnosis, Response plan and rectification suggestions, etc.)
2) Improve the manuscript. Copies, scans, and unsigned documents of all materials on which the service is based, including but not limited to those provided by the client, and the lawyer’s self-retrieving and collecting, etc., shall be stamped and confirmed by the company. After making a catalog of manuscripts, coding each document, and binding them into a booklet, as an attachment to the compliance report, the entrusting unit is also provided.
Reminders on key issues in the process of compliance services for specific issues
1. The number and professional configuration of the lawyer team.
In terms of the number of teams, it is recommended to at least "1+1+2", that is, 1 senior criminal lawyer with rich experience and overall control + 1 backbone lawyer responsible for docking with the client's designated personnel and uploading and distributing within the team + 2 Lawyers who cooperate with basic work such as evidence collection, retrieval, and data sorting. In terms of professional composition, it is recommended that "criminal lawyers + others" involve corporate crimes, which generally involve intersecting criminals and civilians and executions. It is recommended to invite lawyers who specialize in civil and commercial business in the corresponding field to join the service team to make up for criminal lawyers in civil and commercial affairs according to the nature of the review object. Deficiencies in thinking and other professional fields. Of course, the above composition is the minimum allocation. According to the size of the service, the allocation of lawyers at all levels can be flexibly increased.
2. Attach great importance to the lawyer's own risk prevention and control during the service process.
Criminal compliance contains high risks, improper grasp and careless operation will bring great hidden dangers to service lawyers. In terms of risk prevention and control, it is recommended that service lawyers pay attention to the following points:
1) The selection of the contact person of the entrusting unit should be as detached as possible, and it cannot be an employee or executive who has an interest relationship with the investigation matter or has a high criminal risk; 2) The due diligence thinking and rules of civil and commercial cases are integrated into the criminal compliance business Carry out, split and refine the work steps as much as possible, and leave traces step by step; 3) In accordance with the criminal procedure evidence collection procedures and rules, strictly all evidence collection actions. 4) Use the prosecution’s thinking, position, and common allegation logic to guide the collection of basic materials and review conclusions, and replace different personnel to repeat the inspection; 5) If the company has a criminal risk, it should be strict in the formulation and prompting of response measures Within the scope of the legal framework, in the process of talking and communicating with the staff of the entrusting unit, the whole process of recording and video recording shall be as much as possible.