CHINA Law and Practice Contributed by: Alan Zhou, Jacky Li, Weiwei Gu, Steven Zhu and Jenny Chen, Global Law Office
From a criminal law perspective, the National People’s Congress issued Amendment XII to the Criminal Law (“Amendment XII”) on 29 December 2023, which came into force on 1 March 2024. Amendment XII mainly enhances punitive provisions and reinforces criminal liability for commercial bribery crimes, and expands criminal liability for corruption-related offences on bribery and bribe-offering acts in the private sector. These revisions signify a rigorous commitment to combatting and penalising corruption and bribery- related offences through legislative improvements. 2. Bribery and Corruption Elements 2.1 Bribery Definition of a Bribe The current administrative law and criminal law have different definitions of bribery, and the connotation of bribery varies from the criminal law and administrative law perspectives. From the criminal law perspective, there are a total of 11 crimes relating to bribery, which generally forbid the act of offering a bribe to any state functionary or non-state functionary, and the receiving of that bribe by any state functionary or non-state functionary. For example, any state functionary who extorts property from others by taking advantage of his or her position or who illegally accepts others’ property in return for securing benefits for them shall be convicted of the acceptance of bribes. From the administrative law perspective, in a broad sense, bribery refers to offering or taking money or goods and other acts conducted for the purpose of offering or obtaining trading opportunities or other economic benefits, in violation of the fair competition principle. Public Officials The law distinguishes between bribery of a public official and bribery of an ordinary individual. There is a specific term for a public official in China, which is “state functionary”, which means persons who per - form a public service in state organs, state-owned
enterprises and institutions, and other persons who perform a public service according to law. The Criminal Law defines the boundary between crimes relating to the bribery of a state functionary and those relating to the bribery of an ordinary indi - vidual, and also stipulates different crimes, depending on the involvement of duty or influence of the state functionary. For example, an individual offering bribes to a state functionary will be convicted of the crime of offering bribes to a state functionary and will be subject to criminal liabilities of up to lifetime imprison - ment, along with confiscation of property. The act of offering bribes to an executive in a private entity will constitute the crime of offering bribes to a non-state functionary and will be subject to criminal liabilities ranging from criminal detention (a less punitive form of imprisonment, involving incarceration at a police station for up to six months with occasional home visits) to imprisonment of up to ten years, along with a monetary fine. Bribery of Foreign Public Officials According to the Criminal Law, anyone giving any property to a functionary of a foreign country or an official of an international public organisation for any improper commercial benefit will be convicted of the crime of bribery of foreign public officials and interna - tional public organisation officials, and will be subject to imprisonment of up to ten years and a monetary fine. Hospitality Expenditures, Gifts and Promotional Expenditures, and Facilitation Payments Hospitality and promotional expenditures would not necessarily constitute bribery if they were incurred in ordinary business circumstances, such as maintain - ing a client relationship or promoting products and services, provided they are reasonable in scope and accurately recorded in the books and records. Small advertising gifts, usually worth less than CNY200, are permitted under the Provisional Regula - tions on the Prohibition of Commercial Bribery. There is no official definition for facilitation payments in China. In practice, any payment that is made in exchange for illegal business opportunities, advan -
52 CHAMBERS.COM
Powered by FlippingBook