CHINA: An Introduction to Corporate/Commercial: Shandong (PRC Firms)
New Challenges Ahead for Corporate Compliance Under the New Company Law in China
新公司法下企业合规实践新挑战公司是最重要的市场主体，国企是实现我国经济高质量发展和中国式现代化的助推器，民企则是推进中国式现代化的生力军。作为规范公司主体的基础性法律，新公司法的审议通过，对国企和民企完善公司治理、加强合规管理，实现共进性协同发展意义非凡。
Companies are the most important market players, state-owned enterprises (SOE) are the boosters for China's high-quality economic development and modernisation, while private enterprises are the active force for promoting Chinese modernisation. As the basic law governing corporate entities, the promulgation of the new Company Law is of great significance for both state-owned and private enterprises to improve their corporate governance, strengthen compliance management, and achieve coordinated development.
新公司法开宗明义，将完善中国特色现代企业制度首次写入总则，并重点修订“三会一层”职责边界，新增二十余条规定压实压紧董事责任，为现代企业内部治理提供了清晰的指引。与此同时，为顺应经济社会发展变化新形势，新公司法将国企合规建设经验成果上升为法律规范，首次明确国家出资公司应当加强内部合规管理。重视程度不言而喻。
The new Company Law, from the very beginning, has included the improvement of modern enterprise system, that embodied Chinese characteristics, into the general provisions for the first time, and focused on revising the remit of responsibilities of governing body of companies, and added more than twenty articles to strengthen the responsibility of directors, providing clear guidance for the internal governance of modern enterprises. At the same time, in order to adapt to the new situation of economic and social development, the new Company Law has elevated the experience and achievements of SOE’s compliance construction to legal norms, clearly requiring SOEs to strengthen their internal compliance management. The degree of emphasis is self-evident.
作为基础工业强省、资源矿产大省、外贸出口大省，山东各类实业、投资活动十分活跃，国企与民企走出了一条具有山东特色、活力迸发的协同发展之路。近年来山东省国资委亦高度重视国企合规工作，相继制定《省属企业合规管理指引》《关于进一步加强省属企业合规管理工作的指导意见》《关于进一步加强依法合规经营的通知》，将“三会一层”治理主体合规管理职责和“三道防线”管理框架放在突出位置，不断提升省属国企风险防控能力。
As a province with a strong foundation industry, abundant resources and minerals and numerous export transactions, Shandong remains active in industrial and investment activities. SOEs and private enterprises have embarked on a path of coordinated development with Shandong characteristics and bursting vitality. In recent years, Shandong Provincial State-owned Assets Supervision and Administration Commission (Shandong SASAC) has also placed great emphasise on compliance of SOEs, and subsequently formulated the Guidelines for Compliance Management of Provincial Enterprises, the Guiding Opinions on Further Strengthening Compliance Management of Provincial Enterprises, and the Notice on Further Strengthening the Management of Compliance with Laws, placing the compliance management responsibilities of governing body and the "three lines of defense" management framework in a prominent position, and continuously improving the risk prevention and control capabilities of provincial SOEs.
有鉴于此，在大合规潮流和新公司法背景下，省内国企亟待根据新公司法规定，结合省国资委强化合规管理新要求，加快完善企业合规的“四梁八柱”，筑牢“三道防线”，实现“外规内化”，守住重大风险底线。而已经与国企形成“我中有你”良好局面，休戚与共的民企也并非合规大势的局外之人。与新公司法同日审议通过的刑法修正案（十二）将现行对“国有公司、企业”相关人员适用的犯罪扩展到民营企业，对民企董事、经理合规要求加强，加大保护民营企业产权的意义凸显。因此，民营企业应顺势而为，将合规融入现代企业管理制度，严防合规风险。
In view of this, in the context of corporate compliance trends and the new Company Law, Shandong SOEs are in urgent need to lay all significant foundations of corporate compliance management system in accordance with the provisions of the new Company Law and in conjunction with the new requirements of Shandong SASAC, strengthening the "three lines of defense", transforming external compliance requirements into internal regulations, and keeping the bottom line for significant risks. Although private enterprises have established a good relationship with SOEs and share the same fate, they are not outsiders to the trend of corporate compliance. The Amendment (XII) to the Criminal Law, which was promulgated on the same day as the new Company Law, extended the current crimes applicable to the relevant personnel of state-owned companies and enterprises to private enterprises, which strengthens the compliance requirements for directors and managers of private enterprises, and enhances the significance of protecting the property rights of private enterprises. Therefore, private enterprises should follow the trend, embed compliance in the modern enterprise management system, and prevent non-compliance.
结合金杜过往国企和民企合规体系建设项目经验，省内公司纠纷案件和涉案企业合规不起诉实践经验，我们认为，山东企业应与时俱进，结合新公司法和合规新趋势，从企业实际出发，逐步完善公司治理机制，建立反贿赂合规风险库以及提升ESG专业治理能力，共同谱写现代企业制度下“国民”共进的新篇章。
Based on our past experience in building compliance systems for SOEs and private enterprises, and handling company-related disputes and non-prosecution cases involving compliance issues, it is believed that Shandong enterprises should keep pace with the times, embracing the new company law and compliance trends. The Shandong enterprises gradually improve the corporate governance mechanism, establish an anti-bribery compliance risk library and improve ESG professional governance capabilities, and eventually compose a new chapter of "SOEs and private enterprises making progress together" under the modern enterprise system.
首先，企业应厘清“三会一层”职权边界，完善配套决策管理、授权机制，实现企业科学决策、高效执行、有效监督的协调运转和相互制衡。
Firstly, enterprises should clarify the boundaries of responsibilities of governing body, and improve decision-making management and authorisation mechanisms, to realise the coordinated operation and mutual checks and balances of scientific decision-making, efficient performance and effective supervision.
约束控股股东和授权董事会，是我国企业构建现代公司治理结构的重要任务，也是本次新公司法修订的应有之意。企业应当深入理解新公司法关于公司治理结构和“三会一层”职权边界的规定，逐步完善股东会—董事会—经理层“三级”授权机制、重大决策合法合规管理机制��及董监高违法违规行为追责问责机制，编制董事忠实勤勉行为准则和负面清单、股东会/董事会授权清单以及重大事项决策清单，实现股东权利归位、董事管理权力到位，各谋其政，各司其职。
Constraining controlling shareholders and empowering boards of directors is an important task for Chinese enterprises to build a modern corporate governance structure, and the purpose of amending the Company Law. Enterprises should have a deep understanding of the new Company Law on corporate governance structure and the boundaries of responsibilities of governing body, gradually improve the "three-level" authorization mechanism of “shareholders' meeting to board of directors to management team”, the legality and compliance management mechanism for major decision-making, and the accountability mechanism for illegal or non-compliant behaviors of directors, supervisors, and senior management. They should also prepare the conduct code and negative list of directors' duties of loyalty and diligence, a list of powers delegated by shareholders' meeting and board of directors, and a list of decisions for major matters, so as to ensure that shareholders' rights are restored, directors' management powers are in place, and all go about their respective terms of reference.
其次，企业应建立反贿赂合规风险库，隔离员工与企业责任，降低民事和刑事风险。
Moreover, the enterprises should establish an anti-bribery compliance risk database to separate employees from corporate responsibilities and reduce civil and criminal risks.
新公司法第182条强化了对董监高关联交易与同业竞争的监管力度，扩大了关联交易主体范围，其条文与《刑法修正案》（十二）形成合围之势，共同阻断腐败、贿赂的违法路径，为企业有效预防、惩治内部腐败犯罪提供法律手段。建议企业予以高度重视，结合经营实际，识别和分析业务合规风险，重点梳理和识别关联交易财税违规、商业贿赂领域合规风险并形成专项风险库，确保每一项合规风险点都有对应的风险表现形式或预控要点、违规后果、义务来源，提炼禁止触碰的红线底线，隔离企业可能面临的民事、行政甚至刑事风险。
Article 182 of the new Company Law strengthens the supervision of connected transactions and horizontal competition by directors, supervisors and senior management, and expands the scope of related parties to connected transactions. Its provisions form a combined force with the Amendment (XII) to the Criminal Law to jointly block the illegal path of corruption and bribery, and provide legal means to enterprises to effectively prevent and control internal corruption crimes. It is recommended that enterprises should place great emphasis and attention to it. Entities should identify and analyse business compliance risks based on their operations, focus on sorting out and identifying compliance risks in the field of financial and tax violations in related-party transactions and commercial bribery, and form a special risk database to ensure each compliance risk point has a corresponding manifestations or pre-control points, consequences of violations, sources of obligations, define the bottom line and red line, as well as protect enterprises from potential civil, administrative and even criminal risks.
第三，企业应提升ESG专业治理和风险管理能力，实现企业承担社会责任与商业利益的统一。
Furthermore, the enterprises should improve their ESG governance and risk management capabilities to achieve the unification of corporate social responsibilities and commercial interests.
随着ESG在全球范围内影响加强以及我国绿色低碳发展目标的确立，ESG成为评估企业是否具有可持续发展能力的新标准。新公司法顺应时势，在总则部分明确要求公司从事经营活动应充分考虑职工、消费者等利益相关者的利益以及生态环保等社会利益，承担社会责任，为企业合规经营提出了更高标准，将社会责任从上市公司扩展至全体公司。建议企业注重将ESG植入公司治理和业务流程，详实和量化ESG指标体系，通过董事会和管理层制定有效ESG管理与考核机制，将ESG体系与企业合规管理体系有效融合，推动ESG从成本向效益转换，实现企业承担社会责任与商业利益的统一。
As the influence of ESG strengthens on a global scale and China's green and low-carbon goals are established, ESG has become a new standard for evaluating whether companies have sustainable development capabilities. The new Company Law adapts to the current situation and clearly requires in the general provisions that companies should fully consider the interests of employees, consumers and other stakeholders as well as social interests such as ecological and environmental protection when conducting business activities, and assume social responsibilities, setting higher standards for corporate compliance operations. The social responsibility has been extended from listed companies to all companies. It is recommended that enterprises should focus on embedding ESG into corporate governance and business processes, detailing and quantifying the ESG indicator system, as well as formulating effective ESG management and assessment mechanisms through the board of directors and management, and effectively integrating the ESG system with the corporate compliance management system, promoting ESG from cost to benefit conversion to achieve the unification of corporate social responsibilities and commercial interests.
鉴于新公司法对优化公司治理，完善公司资本制度，强化控股股东、实控人和董监高责任等方面提供了更为丰富的制度选择和新要求，企业也应与时俱进，将中国特色现代企业制度优势转化为竞争和发展优势，拔节生长，勇立潮头。
In view of the fact that the new company law provides richer institutional choices and new requirements for optimising corporate governance, improving the company's capital system, and strengthening the responsibilities of controlling shareholders, actual controllers, directors, supervisors, and senior executives, companies should also keep pace with the times and transform the advantages of the modern enterprise system with Chinese characteristics into competitive and development advantages, grow jointly, and stand at the forefront.