环球律师事务所-《比较法律指南：反贿赂与反腐败（第六版）》中国篇（英）-10页

China Bribery & Corruption Legal Framework Summary

Overview

This guide covers the legal and regulatory landscape for bribery and corruption in China, based on various laws, including criminal, administrative, civil legislation, and Chinese Communist Party (CPC) discipline. It addresses key aspects such as definitions, enforcement authorities, civil and criminal consequences, compliance requirements, and recent trends.

Legal Framework

• The framework is stratified into three levels:
  • Civil and administrative laws: e.g., Anti-Unfair Competition Law, prohibiting commercial bribery.
  • Criminal Law and its interpretations: defines bribery-related crimes.
  • CPC discipline: stricter rules for party members, with lower thresholds for violations.

Authorities

• Criminal cases: Investigated by Public Security Bureau (PSB); prosecuted by People's Procuratorate (Procuratorate). Since 2018, bribery involving public officials is handled by the Supervisory Commission.
• Administrative cases: Primarily handled by State Administration for Market Regulation (SAMR), which may involve industry-specific authorities like China Banking and Insurance Regulatory Commission.
• Whistleblower protection: Mechanisms exist under laws like the Anti-Unfair Competition Law, with confidentiality and anti-retaliation measures enforced by the Procuratorate.

Definitions

• "Bribery" defined differently in administrative and criminal contexts:
  • Administrative: Offering or receiving money/goods to gain business opportunities.
  • Criminal: Includes offenses like bribing state functionaries (up to life imprisonment) or non-state functionaries (up to 10 years).
• Distinction between bribery of public officials ("state functionaries") and private persons; public officials involve stricter liability for crimes such as offering bribes to foreign officials.

Civil Consequences

• Civil penalties through administrative enforcement result in fines (up to RMB 5 million draft amendment), confiscation of illegal gains, or revocation of business licenses.
• Unfair competition law may impose fines from RMB 100,000 to 3 million for violations, with broader civil liability possible.

Criminal Consequences

• Penalties include imprisonment, fines, and confiscation of property for individuals and entities.
• Offenses range from petty bribery to complex cases with harsh penalties for public officials engaging in corruption.

Compliance and Defenses

• Compliance programs: Companies must establish measures to prevent bribery; defenses include proving no intent, compliance efforts, or leniency under pilot programs promoted by the Supreme People's Procuratorate.
• Defenses: Focus on the nature of bribery-receiving parties, absence of illegitimate inducement, or proving no subjective fault under Administrative Penalty Law.

Key Trends and Challenges

• Enforcement: High frequency of government investigations, especially in healthcare and other industries; challenges include evidence collection issues and international cooperation barriers.
• Upcoming reforms: Amendments to Anti-Unfair Competition Law may tighten penalties, extending liability and fine limits.
• International cooperation: China is involved in conventions like the UN Convention Against Corruption and extraditions, facilitating cross-border efforts.
• Business challenges: Companies face risks from evidence preservation rules under International Criminal Judicial Assistance Law and data localization requirements.

Conclusion

China prioritizes anti-bribery efforts with zero tolerance and robust enforcement. Businesses must implement internal compliance programs to mitigate risks and challenges, alongside proactive handling of government inquiries.