CHINA Law and Practice Contributed by: Alan Zhou, Jacky Li, Weiwei Gu, Steven Zhu and Jenny Chen, Global Law Office
as aggravating circumstances, and applies a heavier punishment accordingly. Voluntary confession of a crime and the active adoption of measures to reduce the losses caused by the crime would generally be seen as factors for considering a lighter punishment. As for the administrative penalty, many provinces and cities have formulated local administrative penalty dis - cretion benchmarks within the scope of administrative penalties stipulated by laws and regulations. Taking Shanghai Municipality as an example, the Discre - tionary Standards of Administrative Penalty in Mar - ket Regulation Enforcement (the “Standards”) were issued in 2020 and revised in 2022 by the Shanghai Administration for Market Regulation (AMR), and pro - vide practical metrics on how to determine the level of an administrative penalty for an individual or an entity violating the AUCL and other laws the AMR is responsible for enforcing. The Standards set out three levels of administrative penalty: low, middle and high. A few factors are taken into account when the AMR evaluates the penalty level, including: • the number of recipients accepting bribes and the times of that bribery; • the duration of illegal acts; • the amount of bribery or transaction amount involved; • whether such bribery is subject to the risk of caus - ing personal or property damage; and • the impact on the whole society. From the perspective of criminal law, according to the Criminal Procedure Law, any entity or individual that discovers the facts of a crime or a criminal suspect shall have a duty and right to report the case or pro - vide information to a public security organ, a peo - ple’s procuratorate or a people’s court. Said report is described as a duty in the Criminal Procedure Law, but no legal liabilities or any other penalties are explic - itly stipulated. From the perspective of administrative law, there is no explicit requirement to self-report violations of 6. Disclosure Processes 6.1 Disclosure Obligations
anti-bribery and anti-corruption provisions. However, if a listed company is implicated in criminal investiga - tions or administrative investigations initiated by the China Securities Regulation Commission (CSRC), or if criminal punishments are imposed, administrative penalties are imposed by CSRC or significant admin - istrative penalties are imposed by other competent authorities, the Securities Law and the Administrative Measures on Information Disclosure by Listed Com - panies stipulate explicit information disclosure obliga - tions. In addition, the listed company shall disclose and state the cause, the current status and the likely From the perspective of criminal law, according to Arti - cle 67 of the Criminal Law, voluntary self-disclosure of criminal activity is generally encouraged by stipulat - ing mitigation, leniency or even exemption from the criminal penalties under such circumstances. Similar principles and approaches may also be found in some other provisions prescribed in the Criminal Law. For example, Article 164 of the Criminal Law provides that any briber who confesses the bribery voluntarily prior to prosecution may be given a mitigated punishment or be exempted from punishment. effect of the event in a timely manner. 6.2 Voluntary Disclosure Incentives From the perspective of administrative law, accord - ing to Article 32 of the Administrative Penalty Law and Article 13 of the Guiding Opinions on Regulating the Discretion over Administrative Penalty for Mar - ket Regulation (the “Guiding Opinions”), a mitigated or reduced administrative penalty shall be imposed under the circumstances of voluntary self-disclosure of an illegal act that is not yet known to the market regulatory authority. Similar principles may also be found in some provincial regulations, such as the There is no explicit process for companies and indi - viduals to apply for the information or documentation for self-disclosure. 6.4 Protections Afforded to Whistle-Blowers For the protection of whistle-blowers, some specific rules have been formulated to provide a comprehen - sive mechanism on both substantial and procedural Standards issued by Shanghai AMR. 6.3 Self-Disclosure Procedures
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