合规性报告：反贿赂合规管理在中国（英文版）_18页

Managing Anti-bribery Compliance in China: Summary

Core Content

This document provides an overview of the challenges and best practices related to anti-bribery and anti-corruption compliance for US companies operating in China, based on the USCBC 2017 Compliance Report. It highlights the evolving legal landscape, corporate strategies, and cultural considerations in adapting global compliance frameworks to the Chinese market.

Main Views

• Impact of the Anti-Corruption Campaign:
  The 2012 anti-corruption campaign in China has led to a more transparent and compliant business environment, reducing the likelihood of officials requesting special treatment. However, it has also slowed bureaucratic decision-making and increased caution among officials when engaging with private companies.

• FCPA Compliance as a Priority:
  Despite the campaign, the US Foreign Corrupt Practices Act (FCPA) remains a critical compliance focus for US companies. The DOJ and SEC have intensified enforcement in China, with 54% of SEC civil resolutions and 22% of DOJ resolutions in 2016 involving Chinese operations.

• Adaptation of Global Compliance Policies:
  Most companies have global compliance policies with country-specific rules for China. They rely on local teams to adapt policies to the Chinese market, and have increased hiring to support these efforts. A regional compliance structure is often used to maintain independence from local leadership.

• Expense and Gift-giving Thresholds:
  Companies have established mandatory thresholds for meal and entertainment expenses, with averages around RMB 414 ($60) for meals and RMB 365 ($53) for gifts. These thresholds have remained relatively stable since 2013, though stricter guidelines on the types of gifts and meals are being implemented.

• Training and Risk Assessment:
  Training is essential for cultivating a compliance culture. Companies use a variety of methods, including risk assessments, online and in-person sessions, and real-world examples. Sales and business development teams are identified as the primary sources of compliance risk, followed by government affairs teams.

• Technological Advancements in Compliance:
  New technology and software systems are being used to monitor and approve business expenses, as well as to communicate with employees. By 2017, over 50% of companies used some form of online approval or tracking, up from less than 10% in 2013.

• Enforcement Environment and Legal Framework:
  China has developed a complex legal framework to combat corruption, including the Anti-Unfair Competition Law (AUCL), Criminal Law, and the State Administration for Industry and Commerce (SAIC) interim provisions. These laws have expanded the definition of commercial bribery and increased penalties for violations. China is also considering adopting international compliance standards like ISO 19600.

• Challenges and Concerns:
  Companies face challenges in navigating the evolving regulatory environment, lack of transparency in Chinese enforcement processes, and ambiguity in what constitutes commercial bribery. The campaign has also increased the scrutiny of business practices, particularly in industries like healthcare, finance, and FMCG.

Key Information

Legal and Regulatory Landscape

• Anti-Unfair Competition Law (AUCL):
  Revised in 2017, this law provides clearer definitions of commercial bribery and imposes strict penalties, including fines up to RMB 3 million and revocation of business licenses.

• Criminal Law:
  Articles 389–391 and 393 prohibit bribing state officials and related entities. Amendment (IX) in 2015 increased penalties and expanded the scope of commercial bribery to include gifts to relatives of officials.

• SAIC Interim Provisions:
  These are implementing regulations for the AUCL, outlining proper accounting procedures and examples of commercial bribery. Violators may face administrative fines, confiscation of illegal gains, and criminal prosecution.

• ISO 19600:
  China's National Institute of Standardization (CNIS) is considering adopting this international standard for compliance management, which provides a "Plan-Act-Do-Check" framework.

Compliance Practices

• Expense Thresholds:

  • Meals: RMB 414 ($60) per person
  • Gifts: RMB 365 ($53) average, with many companies setting a lower limit of RMB 300 ($45)
  • No use of gift cards or cash equivalents

• Gift-giving Restrictions:
  Gifts are typically low-cost, centrally purchased, and bear the company logo. Cigarettes, alcohol, and cash are banned. Some companies use pre-approved gift stockrooms to simplify the process.

• Training and Risk Mitigation:
  Companies use targeted training based on risk assessments, with higher-risk teams receiving more intensive, instructor-led sessions. Training is localized and includes real-world examples.

• Technology Integration:
  Software tools for expense tracking and approval are becoming more common, allowing for better oversight and compliance management.

Reporting Structures

• Regional Compliance Head:
  Most companies have a regional compliance officer who oversees the China team, providing independence and expertise.

• Direct Reporting to US Compliance Head:
  Some companies report directly to the US compliance head with dotted-line reporting to local leadership, which can limit flexibility and oversight.

• Multifunctional Compliance Committees:
  A few companies rely on cross-functional teams (legal, finance, HR, government affairs) to manage compliance, often with a compliance board that meets regularly in China.

Risk Assessment and Management

• Risk Assessment Tools:
  Companies use third-party audits, hotline data, and internal risk assessments to identify high-risk functions, such as sales and government affairs.

• Best Practices:

  • Tailoring policies to local conditions
  • Ensuring local buy-in through consultation
  • Maintaining a balance between compliance and business practices

Conclusion

The document emphasizes the importance of adapting global compliance frameworks to the unique challenges of the Chinese market, while maintaining a strong compliance culture through training, technology, and structured oversight. It also underscores the need for continuous monitoring of evolving laws and enforcement practices, and the role of local teams in ensuring effective compliance management.