Chinese Criminal Bribery Flashcards
What are the different types of bribery violations under Chinese law?
Public sector bribery;
Commercial brbiery;
Overseas bribery
What are the statutory bases for anti-bribery in China?
Criminal Law of the People’s Republic of China 1997 (1997 Criminal Law). This punishes criminal acts of
bribery.
• Anti-unfair Competition Law of the People’s Republic of China 2017 (2017 AUCL). This punishes various
acts of bribery undertaken by private parties for a business purpose.
• Internal disciplinary regulations of the Chinese government and CCP. These apply more detailed and
stringent penalties to public officials and CCP members.
Define public sector bribery
Giving, receiving, or intermediating a bribe involving current or former Chinese public officials, referred to as “state personnel” (国家机关工作人员), their families or close connections, or public entities.
True or False. Public Sector bribery is the most serious category of bribery under Chinese law.
True. [Note: This type of bribery is the most
vigorously investigated and attracts the heaviest penalties. Giving a bribe, receiving a bribe and intermediating
bribery are distinct offences; these are further subdivided based on whether the bribe-giver and bribe-taker are
individuals or entities and whether the recipient held office or was a former official at the time the bribe was offered]
True or False: Both corporate entities and individuals can be found guilty of public sector bribery.
True. [Note: An entity may be held criminally liable where the crime is committed on behalf of or for the benefit of the entity OR where the entity gains illegal income from the commission of the crime.]
Under what circumstances can employees of entities be found guilty of bribery?
Where they are “persons in charge” or those “persons with directy responsibility”
What are the elements of the offense of public sector bribery
The giving of property (财物).
• The recipient being serving or former state personnel (国家机关工作人员), or a close connection (与该
国家工作人员关系密切的人) of state personnel.
• The bribe having been made to seek improper benefit (谋取不正当利益).
Who are state personnel for the purposes of the crime of public sector bribery
A person who performs public duties at any state agency (that is, the legislative, administrative or judicial
bodies or the military).
• A person who performs public duties at an SOE, people’s organisation, or state institution.
• An employee assigned by an SOE to a company, enterprise or institution that is not owned by the state to
perform public duties.
• Any other person who performs public services in accordance with law.
True or False: Bribing a former state personnel is not a crime because s/he is no longer in office and can no longer receive an improper benefit.
False. [Note: It is a crime to bribe former state personnel, as well as those who still hold office (Article 390A, 1997 Criminal Law).]
What is a close connection of state personnel?
A close relative of state personnel (国家工作人员的近亲属).
• Any other person who has a close connection (关系密切) with state personnel.
What constitutes seeking improper benefit?
• Seeking any benefit that violates laws, regulations, rules or policies.
• Seeking any benefit that requires state personnel to assist or facilitate the violation of laws, regulations,
rules, policies or industrial standards.
• Seeking competitive advantage in violation of the principle of fairness and justice in the course of economic,
personnel management or other activities.
True or False: It is not an offense to facilitate the bribery of state personnel as long as you did not receive any money for doing so.
False. It is an offence (carrying a penalty of up to three years’ imprisonment and a fine) to facilitate the bribery of state
personnel as an intermediary or go-between (Article 392, 1997 Criminal Law).
What is property in the context of public sector bribery?
The term is not defined in the 1997
Criminal Law, but in the commercial bribery context, the Supreme People’s Court (SPC) and Supreme People’s
Procuratorate (SPP) have interpreted property as including:
• Cash (金钱).
• Goods (实物).
• Property interests whose value can be expressed monetarily (可以用金钱计算数额的财产性利益). [Note: This includes the renovation of houses, the provision of gift cards, charge or credit cards or coupons, the reimbursement of expenses and similar benefits. For example, paying for an official to travel to the US for non-work purposes would fall under this heading.]
How does the the 2016 Bribery Interpretation expand the definition of “money and
property”, that is, the material benefit that induces an “improper benefit” (which constitutes a crime)?
By including property-like benefits in the definition of “improper benefit” that :
• Can be converted into a monetary amount, such as decorating a residence or discharging a debt.
• Require the payment of money, such as membership services and travel.
True or false: Corporate entities and individuals can be found guilty of commercial bribery and be the subject of administrative sanctions and civil liability.
True. [Note: corporations can be held liable for the acts of their employees, directors and officers under criminal, administrative and civil regulations]
