CHINA Law and Practice Contributed by: Alan Zhou, Jacky Li, Weiwei Gu, Steven Zhu and Jenny Chen, Global Law Office
implemented compliance programmes and preventa - tive measures such as providing regular compliance training and requiring employees’ written compliance commitment letters in preparation for any potential legal liability concerns. Furthermore, it has been suggested by the enforce - ment authorities that a business operator could be relieved of legal liabilities if it: • has formulated legal, compliant and reasonable measures; • has taken effective measures for supervision; and • does not connive in the staff’s bribery, or do so in a disguised form. From the perspective of administrative law, where a business operator bribes any other party in violation of the AUCL, the supervision and inspection authority shall confiscate its illegal gains and impose a fine of between CNY100,000 and CNY5 million. Where the circumstances are severe, its business licence shall be revoked. The legal representative, principal or other persons directly responsible for the business operator may also face confiscation of illegal gains and a fine of up to CNY1 million. Moreover, there is a general article in the AUCL stipulating that business operators that have caused damage to others shall be subject to civil liabilities, but without any further specification of the details. Unlike other jurisdictions such as the USA where the enforcement authorities would implement the civil penalties on the offenders, civil consequences in Chi - na are generally resolved through civil disputes, where the aggrieved party of the bribery could bring a lawsuit in court or use alternative dispute resolution channels. From the perspective of criminal law, there are 11 different crimes regarding commercial bribery stipu - lated in the Criminal Law, with corresponding criminal penalties for each one; in brief, the consequences of crime include deprivation of liberty and property. For individuals, the consequences include criminal deten - 5. Penalties for Violations 5.1 Penalties on Conviction
tion or life imprisonment, as well as fines or confisca - tion of property. Similarly, for crimes committed by an entity, a fine is imposed on the entity itself and criminal detention or fixed-term imprisonment is imposed on its responsible persons. 5.2 Guidelines Applicable to the Assessment of Penalties The guidelines by which to assess criminal liability are mainly based on the provisions of the Criminal Law and relevant judicial interpretations; in respect of administrative liability, the assessment guidelines are mainly based on the discretion benchmarks for administrative penalties formulated by each province and municipality. For the same crime, the Criminal Law usually stipu - lates multiple levels of punishment (with minimum and maximum sentences for each level) according to the gravity of the circumstances – ie, ordinary circum - stances, severe circumstances and extremely severe circumstances. Judicial interpretations would provide the details for the level of gravity. To take bribery as an example, the newly amended Criminal Law stipulates that anyone who commits the crime of offering bribes shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, with a fine; if illegal gains are obtained and the circumstances are severe, or if severe loss is caused to the interests of the state, he or she shall be sentenced to fixed-term imprisonment ranging from three to ten years and a fine; and if the circumstances are extremely severe, or if the state has suffered extremely severe losses in its interests, he or she shall be sentenced to fixed-term imprisonment of more than ten years or life imprison - ment, a fine or confiscation of his or her property. The judicial interpretation provides the determining factors for “severe circumstances” and “extremely severe cir - cumstances”, which mainly refer to the amount of the bribes offered. In addition, the Criminal Law stipulates the application of heavier or lighter punishment within the limits of the prescribed punishment. For example, Article 390 of the newly amended Criminal Law added factors such as offering bribes more than once or to more than one person and offering bribes to supervisory, administrative law enforcement or judicial personnel
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