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The Status And Prospect Of Anti-Commercial Bribery Law Of China
作者:宿胜利律师发布时间:2012-09-10来源:浏览量:61

Tianjin wisely law firm chief partner su shengli
Along with the further transition of our country’s market economy, the current social resources shall be re-adjusted and re-distributed. Under such situation, the commercial bribe has restricted our transition to market economy and the improvement of business operation and investment circumstances. In recent years, it was demonstrated by many commercial bribe cases(Siemens,Lucent,IBM,DPC,ect.) that such kind of bribe has been developed from unspoken rules in the business competition to the main “weapon” of the most enterprises, even many famous multinational enterprises were involved, who are the victims of such improper means as well as the violator of the proper business rules.

Therefore, the sound Anti-Commercial Bribe laws and attack commercial bribe action shall be the most important work for Chinese government to improve social management ability. Today, let’s talk about the current condition of Anti-Commercial Bribe laws of China and look into the future(Prospect).
Ⅰ. Definition
  Commercial Bribery refers to an act that an entity,or an employee of a company or enterprise or hired by any other entity violates the rules of fair competition, for the purpose of providing or obtaining transaction opporunity or other economic benefits by means of offering or accepting money or property, as well as other benefits. 
 Article 8, Law Of The People’s Republic Of China Against Unfair Competition.(January 1,1994)

  15th NOV, 1996 State Administration of Industy And Commerce Interim Provision On Prohibiting Commercial Bribery

 On Nov. 20th, 2008, the Supreme People’s Court and the Supreme People’s Procuratorate defined the Properties of Commercial Bribe cases in the “Suggestions For The Applicable Laws In The Penal Cases Of Commercial Bribes”
 
 Article 163,164,385,387,389,391,392,393 Criminal Law Of China (1997, 2006 Amendment 6, 2011 Amendment 8)
 
2.The main manifestation modes of commercial bribe

Money in cash and material objects
The property interests that could be calculated in numbers of money, including:
In the business activities, providing and accepting the business supports that violate fair competition, or tour, inspection and other activities.
Providing and receiving all kinds of club cards, consumer cards, shopping cards and other negotiable securities.
Providing and using houses, automobiles, etc.
Providing and receiving shares and bonus.
Granting and receiving properties and other interests, by gambling and in the name of expenses on promoting, propaganda, advertisements, training, consulting, technical services, researching, clinic, to procure business and services opportunities, favorable conditions or other economic benefit.
C . Non-material benefit .Such as sexal bribery.(Now
   There are some issues but I agree with this view)
 To date,there is no law in China to punish those who accept sexual bribes.The actual status is more and more criminals and businessmen in China are gaining favours from government officials by providing them with sexual bribes.I think such sexual bribes is often more powerful than money.If it is written down in law that it is illegal,it can increase the effectiveness of the fight against corruption.
3.Penalty
 On the basis of different facts, circumstances and condemnatory principals, the commercial bribes shall be classified as improper transaction acts, common unlawful acts and criminal acts.
 A. Improper transaction acts are the cases of less violations with less amounts and the violations of business morals and market rules, which shall be punished by the Party and government offices, the regulator of the concerned industry and autonomic organizations.
Common unlawful acts are the cases of little violation with small amount and the violations of Anti-improper competition and other laws, which is not committed a crime and shall be administratively punished or bear the civil responsibility.
  Administrative Penalty
Types of administrative penalty shall include :
(1) disciplinary warning;
(2) fine, not less than 10,000 RMB, but not more than 200,000 RMB in light of the circustances;
(3) confiscation of illegal gains or confiscation of unlawful property or things of value;
(4) ordering for suspension of production or business;
(5) temporary suspension or rescission of permit or temporary suspension or rescission of license;
 
 Article 8, Law Of The People’s Republic Of China On Administrative Penalty.
 Article 22, Law Of The People’s Republic Of China Against Unfair Competition.
 Civil Responsibility
  A business operator who violate the provisions of the relate law to do the commercial bribery, and thus causes damage to the infringed business operators, shall bear the liability of compensation for the damages. If the losses of infringed business operator are difficult to estimate, the damages shall be the profits derived from the infringement by the infringer during the period of infringement. And the infringer shall also bear the reasonable expense paid by the infringed business operator for investigating the infringer’s unfair competition or commercial bribery act that violating his legal rights and benefit.
  A business operator whose legal rights and benefit are infringed upon by unfair competition or commercial bribery acts may bring a suit case in a local people’s court of China.
 Article 20, law of the people’s republic of China against unfair competition, September 2, 1993.

 C. Criminal acts are the cases of gross violations with large amounts and serious consequences, which shall be punished as per penal code.
 Criminal Responsibility
  Commercial bribery crimes relating to criminal law provisions of the following nine offenses:
(1) Non-state functionaries acceptance of bribes (  Criminal Law Article 163rd )
(2) offering bribes to the Non-state functionaries ( Criminal Law Article 164rd)
(3) offering bribes to the foreign official or international public organization.(Criminal law amendment 8)
(4) State functionary acceptance of bribes ( Criminal Law Article 385rd )
(5) unit- acceptance of bribes ( Criminal Law Article 387rd )
(6) offering bribes ( Criminal Law Article 389rd )
(7) offering bribes to unit ( Criminal Law Article 391rd )
(8) introducing bribes (Criminal Law Article 392rd )
(9) offering bribes by unit ( Criminal Law Article 393rd )

1. Criminal penalty of the Acceptor
  When the acceptor is a state functionary will be apply or Article 385rd , 387rd  Criminal Law, shall be regarded as guilty of acceptance of bribes and punished for it, shall be punished respectively in the light of the serious of the circumstances from not less than 1 year to death penalty and also to confiscation of property.
  (Criminal Law Article 383rd ).
  State functionary refers to persons who perform public service in state organs.
  Persons who perform public service in state-owned companies or enterprises, institutions on people’s organizations, persons who are assigned by state organs. State-owned companies, enterprises or institutions to companies, enterprises or institutions that are not owned by the state on people’s organizations to perform public service and the other persons who perform public service according to law shall all be regarded as state functionaries.(Criminal Law Article 93)
The amount of committing the crime is not less than 5000RMB.

When the acceptor is a non-state functionary shall be regarded as guilty and punished as following condition.
(1) if the amount is consideraly large (not less than 5000 RMB), he shall be sentenced to fixed-term imprisonment of not more than 5 years or detention. If the amount is huge (not less than 100000 RMB), he shall be sentenced to fixed-term imprisonment of not less than 5 years and also to confisication of property.
Criminal Law Article 163rd ,1
(2)Where any of the employees of any company or enterprise or any other entity violates the relevant provisions of the state by taking advantage of his position to accept kickbacks or commissions in any disguise and keeps them for himself, he shall be convinced and punished by the preceding paragraph.
Criminal Law Article 163rd ,2
2. Criminal penalty of the Provider
  Any state functionary who provide the bribes, shall be punished as the same as the acceptor,in accordance with the provision of  Article 399rd , 390rd , but  without death penalty.
  When the provider is a non-state functionary shall be regarded as guilty and punished as following condition.
  Anyone who gives a considerably largely amount of money or property (personal not less than 10,000 RMB, unit not less than 200,000 RMB) to any of the employees of any company or enterprise or any other entity for the purpose of seeking illegal benefits shall be sentenced to fixed-term imprisonment of no more than 3 years or detention. If the amount is huge (not less than 500,000 RMB), he shall be sentenced to fixed-term imprisonment of no less than 3 years but not more than 10 years, and shall be fined.
  (Criminal Law Article 164rd )


4.The demarcation of commercial bribe and similar acts.
  As a criminal defence lawyer, for commercial bribery cases,it is necessary to pay attention to the demarcation of commercial bribe and similar acts.
The demarcation between discount and commercial bribe
In the business activities, it is legal to grant the discounts to the other party, which must be recorded in the account book.  However, the discounts granted or received under the table and out of the account book are defined as commercial bribe.

The demarcation between commission and commercial bribe
In the business activities, it is legal to grant the remuneration as commission recorded in the account book, to the middleman who provides services and has legal qualification.  However, the commissions granted or received under the table and out of the account book are defined as commercial bribe.

The demarcation between gift and commercial bribe
In the business activities, it is legal to give small promoting gifts as per commercial practice. However, giving cash and material objects to the other party as accessory is defined as commercial bribe.

The demarcation between donation and commercial bribe
The donation should abide by Public Welfare donation laws and other regulations, which must be recorded in account book, not related to the transactions, not harmful to others’ benefits and used in public welfare. However, it is commercial bribe to procure business and services opportunities, favorable conditions or other economic benefits by giving properties in the name of donation.

5. Prospection
  legislation
The General Law of Anti-Commercial Bribe is under preparation, combining criminal, civil and administrative obligation, to define the legal responsibilities for different levels of commercial bribe.
  Political and economic regim reform
Weakening the intervention to the market economic activities from the administration governmental departments and Clearing the monopoly of the governmental departments to the concerned industries are helpful to limit the power and raise a open, just and fair market circumstance.
  supervisor
To set up the profile of enterprises and black list of bribery enterprises, to push ahead with the system construction of enterprise credit, to set up and consummate the credit profile of enterprises including their records of improper competition and commercial bribe acts, and to increase the punishments to the enterprises which have the serious commercial bribe acts. The black list of bribery enterprises shall be reported to the concerned administrative departments and these enterprises are disqualified in certain time to participate in the tenders.
  Implement of law
Enforce the law strictly and intensify the fight against the violations. From above mentioned articles of Anti-commercial bribe laws, the strict enforcement must be able to make the ones go bankrupt who want to make fortune by commercial bribe. Whereas, the current situation is that the laws could not fight against the potential rules of commercial bribe. The essence of such ineffectively enforcement will be the tacit acknowledging!

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