China Supreme Court Judicial Opinions on Commercial Bribery UT

**Unofficial Translation**

China Supreme Court Judicial Opinions on Commercial Bribery Opinions on Several Issues Concerning Application of the Law in Handling Criminal Cases of Commercial Bribery Notice of the Supreme People’s Court and the Supreme People’s Procuratorate on Issuing the Opinions on Issues concerning the Application of Law in the Handling of Criminal Cases of Commercial Briberies The higher people’s courts and the people’s procuratorates of all provinces, autonomous regions and municipalities directly under the Central Government, the military courts and procuratorates of the People’s Liberation Army, the Production and Construction Corps Branch of the Higher People’s Court of Xinjiang Uigur Autonomous Region, and the People’s Procuratorate of Xinjiang Production and Construction Corps: We hereby issue the Opinions of the Supreme People’s Court and the Supreme People’s Procuratorate on Issues concerning the Application of Law in the Handling of Criminal Cases of Commercial Briberies to you. Please earnestly implement them accordingly.

November 20, 2008 Opinions of the Supreme People’s Court and the Supreme People’s Procuratorate on Issues concerning the Application of Law in the Handling of Criminal Cases of Commercial Briberies For the purpose of punishing the crimes of commercial briberies, we hereby put forward the following opinions on the issues concerning the application of law in the handling of criminal cases of commercial briberies according to the relevant provisions of the Criminal Law and in consideration of the casehandling practice.

I. The crimes of commercial briberies shall involve the following eight charges as prescribed by the Criminal Law: (1) crime of acceptance of bribes by a non-state functionary (Article 163 of the Criminal Law); (2) crime of offering bribes to a non-state functionary (Article 164 of the Criminal Law); (3) crime of acceptance of bribes (Article 385 of the Criminal Law); (4) crime of acceptance of bribes by an entity (Article 387 of the Criminal Law); (5) crime of offering bribes (Article 389 of the Criminal Law); (6) crime of offering bribes to an entity (Article 391 of the Criminal Law); (7) crime of bribing as an intermediary (Article 392 of the Criminal Law); and (8) crime of offering bribes by an entity (Article 393 of the Criminal Law).

II. The term “other entities” as mentioned in Articles 163 and 164 of the Criminal Law shall include not only the permanent organizations, such as public institutions, social groups, villagers’ committees, urban

residents’ committees, and villagers’ teams, but also the non-permanent organizations, such as organizing committees, preparatory committees and project contracting teams, which are set up to organize the sporting events, theatrical performances or other legitimate activities.

III. The term “employees of a company or enterprise or any other entity” as mentioned in Articles 163 and 164 of the Criminal Law shall include the non-state functionaries in a state-owned company or enterprise or any other state-owned entity.

IV. Where a state functionary in a medical institution, in the purchase of medical products such as medicines, medical equipment and medical sanitary materials, demands any property from the seller by taking advantage of his position, or illegally accepts any property of the seller for the benefit of the seller, which constitutes a crime, he shall be convicted and punished for the crime of acceptance of bribes according to Article 385 of the Criminal Law. Where a non-state functionary of a medical institution commits an act as described in the preceding paragraph in a considerably large amount, he shall be convicted and punished for the crime of acceptance of bribes by a non-state functionary according to Article 163 of the Criminal Law. Where a medical staff member of a medical institution illegally accepts, in any name, any property of the seller of such medical products as medicines, medical equipment or medical sanitary materials, by taking advantage of his post of making prescriptions, for the benefit of the seller of medical products, and in a considerably large amount, he shall be convicted and punished for the crime of acceptance of bribes by a non-state functionary according to Article 163 of the Criminal Law. V. Where a state functionary of a school or any other educational institution, in the purchase of teaching materials, teaching aids, school uniforms or other items, demands any property of the seller by taking advantage of his position, or illegally accepts any property of the seller for the benefit of the seller, which constitutes a crime, he shall be convicted and punished for the crime of acceptance of bribes according to Article 385 of the Criminal Law. Where a non-state functionary of a school or any other educational institution commits an act as described in the preceding paragraph in a considerably large amount, he shall be convicted and punished for the crime of acceptance of bribes by a non-state functionary according to Article 163 of the Criminal Law. Where a teacher of a school or any other educational institution illegally accepts, in any name, any property of a seller of teaching materials, teaching aids, school uniforms or other items, by taking advantage of his position of teaching, for the benefit of the seller, and in a considerably large amount, he shall be convicted and punished for the crime of acceptance of bribes by a non-state functionary according to Article 163 of the Criminal Law. VI. Where a member of a legally established bid evaluation committee, a negotiating team for the competitive negotiation procurement or a price inquiry group for the price inquiry procurement, in the bid evaluation or procurement activities for a bidding or government procurement, demands any

property of any other person, or illegally accepts any property of any other person for the benefit of such any other person, in a considerably large amount, he shall be convicted and punished for the crime of acceptance of bribes by a non-state functionary according to Article 163 of the Criminal Law. Where a representative of a state organ or any other state-owned entity in a legally established bid evaluation committee, in a negotiating team for the competitive negotiation procurement, or in a price inquiry group for the price inquiry procurement commits an act as described in the preceding paragraph, he shall be convicted and punished for the crime of acceptance of bribes according to Article 385 of the Criminal Law. VII. The property in commercial briberies shall include not only money and property in kind, but also property benefits, the value of which may be calculated in money, such as provision of housing decoration, membership cards containing money, token cards (money) and travel expenses. The specific amounts shall depend on the actually paid costs and expenses.

VIII. For a person who takes a bribe in the form of bankcard, whether the bribe taker has actually drawn money from it or consumed the money, the total amount of deposit in the card shall normally be deemed as the amount of bribery. For a person who overdraws a bankcard, if the party offering the bankcard assumes the responsibility for repayment, the overdrawn amount shall be also deemed as an amount of bribery.

IX. In the crimes of offering bribes, the term “for any illegal benefit” means that a briber seeks any benefit violating a law, administrative regulation or rule, or policy, or requires the opposite party to provide aid or convenience in violation of a law, administrative regulation or rule, policy or industrial norm.

In such commercial activities as bidding and government procurement, giving property to a relevant person in violation of the principle of fairness so as to secure a competitive advantage shall be within the meaning of “for any illegal benefit”.

X. In the handling of criminal cases of commercial briberies, bribery shall be carefully distinguished from gift. A comprehensive analysis and judgment shall be made in consideration of the following factors: (1) background for the property transaction, such as whether the two parties are related or are friends and how about the status and extent of their previous relationships; (2) values of the transacted property; (3) cause, time, and method of the property transaction, and whether the giver has any request for position-related favor from the receiver; and (4) whether the receiver has taken advantage of his position for any benefit of the giver.

XI. Where a non-state functionary and a state functionary in collusion accept any property of any other person jointly, which constitutes a joint offense, they shall be convicted and punished respectively according to the specific situations of taking advantage of their positions: (1) In case that they have taken advantage of the position of the state functionary for any benefit of another person, they shall be subject to criminal liabilities for the crime of acceptance of bribes.

(2) In case that they have taken advantage of the position of the non-state functionary for any benefit of another person, they shall be subject to criminal liabilities for the crime of acceptance of bribes by a non-state functionary.

(3) In case that they have taken advantage of their respective positions for any benefit of another person, they shall be subject to criminal liabilities according to the crime nature of the principal, and if it is impossible to distinguish between a principal and an accessory, they may be subject to criminal liabilities for the crime of acceptance of bribes.