CHINA Law and Practice Contributed by: Alan Zhou, Jacky Li, Weiwei Gu, Steven Zhu and Jenny Chen, Global Law Office
3. Scope of Application 3.1 Limitation Period
• mediatory bribery; • accepting bribes by using influence; and • introducing bribes.
The statute of limitations in the Criminal Law is stipu - lated according to the gravity of the maximum legally prescribed punishment, and shall be calculated from the date when the crime is completed. The maximum period is 20 years, which shall apply to crimes for which the maximum legally prescribed punishment is life imprisonment or the death penalty. For example, for the crime of offering bribery to a state function - ary, the period is further divided into three grades: five years, ten years and 20 years, depending on the maximum legally prescribed punishment. Expiry of the limitation period does not render pros - ecution entirely impossible. For example, for a crime for which the maximum statutory punishment is life imprisonment or the death penalty, even if 20 years have elapsed, the criminal suspect may still be pros - ecuted upon the approval of the Supreme People’s Procuratorate. In addition, where a criminal suspect commits a new crime after the occurrence of a crime but before the expiry of the limitation period, the limi - tation period of the former crime shall also be recal - culated from the date of the new crime. Under circum - stances where a criminal suspect escapes after the case is filed by relevant judicial authorities or where a victim brings a complaint against a criminal suspect, the limitation period shall not apply. From the perspective of administrative law, where an act in violation of the administrative law is not dis - covered within two years from the date when the illegal act is ended, no administrative penalty shall be imposed. This time limit shall be extended to five years when matters pertaining to the life, health or safety of citizens or their financial security are involved and when the acts have resulted in harmful conse - quences, unless otherwise provided by law. 3.2 Geographical Reach of Applicable Legislation The Criminal Law mainly adopts the principle of ter - ritorial jurisdiction over criminal offences, supple - mented by extraterritorial jurisdiction in circumstances where the perpetrator is a Chinese citizen or where a
The crime of mediatory bribery is a subcategory of the crime of accepting bribery, and its key characteristic is that, when conducting the crime of mediatory bribery, the state functionary, by taking advantage of his or her own powers or position, secures illegitimate benefits for an entrusting person through another state func - tionary’s performance of duties (instead of his or her own performance of duties). In this regard, it should be noted that the state functionary whose performance of duties has been taken advantage of should not be aware of the existence of bribery, otherwise he or she would also be convicted of the crime. The crime of accepting bribery by using influence is an independent crime, the key characteristic of which is that the person accepting the bribery is not a state functionary but the state functionary’s close relative or any other person who has a close relationship with that state functionary. As a person who has a close relationship with the state functionary, by using his or her influence, the perpetrator seeks improper benefits through the performance of any duty of the state func - tionary or any other state functionary. The crime of introducing a bribe is also an independ - ent crime. Whoever introduces a bribe to a state func - tionary, if the circumstances are serious, shall be sen - tenced to a fixed-term imprisonment of not more than three years or criminal detention. In practice, where the intermediary is neither a state functionary nor someone who has a close relationship with the state functionary, he or she shall be convicted of the crime of introducing bribery by introducing and facilitating a bribery-related transaction. From the perspective of administrative law, anyone who offers bribery to a third party who has influence to affect the transaction, for the purpose of seeking transaction opportunities or competitive advantages, shall be subject to administrative penalties, as this would constitute commercial bribery. 2.6 Lobbyists This is not applicable in China.
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