CHINA Law and Practice Contributed by: Alan Zhou, Jacky Li, Weiwei Gu, Steven Zhu and Jenny Chen, Global Law Office
4.2 Exceptions Under the AUCL, the counterparty of a transaction does not fall within the scope of the definition of a bribery-receiving party. However, due to the stricter requirements in some industry-specific laws and regu - lations such as Article 88 of the Drug Administration Law, offering unlawful interests to the counterparty, such as the offering of interests to public hospitals by a pharmaceutical company, could still be deemed as bribery. In respect of voluntary surrender or confession of crimes, the court is also empowered not to mitigate the penalty in cases where the circumstances of the crime are severe or flagrant. 4.3 De Minimis Exceptions The Criminal Law sets forth the threshold for pros - ecuting bribery and corruption offences. For exam - ple, the threshold amount for offering bribes to a state functionary and to a non-state functionary is CNY30,000 (approximately USD4,250). Under cer - tain circumstances, the threshold may be lowered to CNY10,000 (approximately USD1,420) – for example, where bribes are offered to three or more state func - tionaries. In comparison, the AUCL does not stipulate the threshold of the bribery amount. One relevant excep - tion is in regard to small promotional gifts, which are permitted by the Provisional Regulations on the Pro - hibition of Commercial Bribery and are usually worth less than CNY200 in practice. 4.4 Exempt Sectors/Industries No sectors or industries are exempt from the afore - mentioned offences. 4.5 Safe Harbour or Amnesty Programme According to the AUCL, the bribery of employees of a company shall be deemed as the act of the com - pany, unless there is evidence to prove that the brib - ery of employees is not related to seeking transac - tion opportunities or competitive advantages for the company. However, no specified regulations or judi - cial interpretations regarding what evidence would be most valid have been made available. In practice, some multinational and local companies have already
advantage, would not be criminalised for bribery. In addition, any briber who voluntarily confesses his or her act of offering bribes before he or she is investigat - ed for criminal liabilities may be given a mitigated or lenient punishment or be exempted from punishment. Even without voluntary surrender, a criminal suspect who truthfully confesses his or her crimes may be giv - en a lighter penalty, and may be given a mitigated pen - alty if any extremely severe consequence is avoided due to his or her truthful confession. In a commercial context, the criteria commonly used by the administrative enforcement agencies for sub - stantiating commercial bribery mainly focus on: • whether there is any lure of improper interests; and • whether there is any illegal intention to obtain busi - ness opportunities or competitive advantages. The key element for differentiating between legitimate exchange of interests and inducement for illegitimate interests lies in whether the interests exchanged have potential influence on fair competition in the market or on the interests and benefits of the consumers. Nota - bly, the AUCL has adopted a new method that lists all the possible examples of statutory bribery-receiving parties, including: • “employee of the transaction counterparty”; • “any entity or individual entrusted by the transac - tion counterparty”; and • “any entity or individual that takes advantage of powers or influence to affect the transaction”, which in its literal meaning excludes the counter - party itself as the bribery-receiving party. Therefore, the corresponding defences for the com - pany could be based on the nature of the bribery- receiving party, the non-existence of the exchange of illegitimate interests, or the lack of potential influence on fair competition or consumers’ interests. Another possible defence for the company could be sustained in the AUCL if a company has evidence to prove that such acts of the employee are irrelevant to seeking transaction opportunities or competitive advantages for the company, and under the Administrative Penalty Law, where a company has evidence to prove that it has no subjective fault.
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