On December 29, 2023, the 7th meeting of the Standing Committee of the 14th National People's Congress reviewed and approved the "Amendment to the Criminal Law of the People's Republic of China (XII)" (hereinafter referred to as "Amendment (XII)"), which will be implemented on March 1, 2024. Amendment (XII) has a total of eight articles, with seven articles of substantive amendments. Among them, Three new crimes related to punishing internal corruption in private enterprises have been added ， Four articles on bribery-related crimes have been adjusted . While Amendment (XII) punishes corruption among internal personnel of private enterprises, it also increases the protection of the rights and interests of private enterprises and entrepreneurs, so as to promote the high-quality development of the private economy with stronger legal guarantees. This article will interpret the content of the amendment to the articles for learning and communication.

 

1. Adjustment of the penalty provisions for the crime of bribery

 

(1) Comparison Table of Articles

 

Criminal Law (Revised in 2020)

Amendment XII to the Criminal Law

Article 390 For committing the crime of bribery, the sentence is Imprisonment of not more than five years or criminal detention, and a fine; if seeking illegitimate benefits through bribery, and the circumstances are serious, or causing significant losses to national interests, the sentence is Imprisonment of not less than five years but not more than ten years , and a fine; if the circumstances are particularly serious, or causing particularly significant losses to national interests, the sentence is imprisonment of not less than ten years or life imprisonment, and a fine or confiscation of property. If a person who offers a bribe voluntarily confesses to the bribery before being prosecuted, he may be given a lighter or mitigated punishment. Among them, those whose crimes are relatively minor, who play a key role in solving major cases, or who have made significant meritorious service may be given a reduced or exempted punishment.

Article 390 For committing the crime of bribery, the sentence is Imprisonment of not more than three years or criminal detention, and a fine; if seeking illegitimate benefits through bribery, and the circumstances are serious, or causing significant losses to national interests, the sentence is Imprisonment of not less than three years but not more than ten years , and a fine; if the circumstances are particularly serious, or causing particularly significant losses to national interests, the sentence is imprisonment of not less than ten years or life imprisonment, and a fine or confiscation of property. One of the following circumstances shall be punished severely: (1) Offering bribes multiple times or to multiple people; (2) State personnel offering bribes; (3) Offering bribes in national key projects and major projects; (4) Offering bribes to seek promotion or adjustment of positions and ranks; (5) Offering bribes to supervision, administrative law enforcement, and judicial personnel; (6) Offering bribes in the fields of ecological environment, finance, safety production, food and drugs, disaster prevention and relief, social security, education, medical care, etc., to carry out illegal and criminal activities; (7) Using illegal income to offer bribes. If a person who offers a bribe voluntarily confesses to the bribery before being prosecuted, he may be given a lighter or mitigated punishment. Among them, those whose crimes are relatively minor, who play a key role in investigation breakthroughs , solving major cases, or who have made significant meritorious service may be given a reduced or exempted punishment.

 

(2) Revision content

 

1. The starting point of the penalty for minor crimes has been lowered. First, the statutory penalty for the crime was adjusted from the original "imprisonment of not more than five years or criminal detention, and a fine" to "imprisonment of not more than three years or criminal detention, and a fine"; second, the statutory penalty for serious circumstances of the crime was adjusted from the original "imprisonment of not less than five years but not more than ten years, and a fine" to "imprisonment of not less than three years but not more than ten years, and a fine."

 

2. Seven types of severe punishment sentencing circumstances have been added.

 

3. It has been added and determined that the briber plays a key role in "investigation breakthroughs" of major cases, and may be given a reduced or exempted punishment.

 

(3) Lawyer's interpretation

 

1. The adjustment of the statutory penalty benchmark for the crime of bribery in this article matches it with the crime of accepting bribes, reflecting the spirit of equal protection and equal crackdown.

 

2. The amendment and improvement of the crime of bribery in Amendment (XII) is another important revision of the crime of bribery on the basis of the amendment to the crime of bribery passed in the Criminal Law Amendment (IX) in 2015. The revision adheres to the principle of "investigating bribery and accepting bribes together", which not only specifically "severely punishes" some serious bribery situations, but also "reduces or exempts punishment" for those who play a key role in "investigation breakthroughs" of major cases, reflecting the criminal policy of "combining leniency and severity".

 

2. Unifying the sentencing range for bribery-related crimes

 

(1) Comparison Table of Articles

 

	Crime of bribery (Amendment XII)	Crime of accepting bribes
First tier	Imprisonment of not more than three years or criminal detention, and a fine	Imprisonment of not more than three years or criminal detention, and a fine
Second tier	Imprisonment of not less than three years but not more than ten years, and a fine	Imprisonment of not less than three years but not more than ten years, and a fine
Third gear	Imprisonment of not less than ten years or life imprisonment, and a fine or confiscation of property	Imprisonment of not less than ten years or life imprisonment, and a fine or confiscation of property
Fourth gear		Life imprisonment or death, and confiscation of property

 

	Crime of bribery by a unit (Amendment XII)	Crime of accepting bribes by a unit (Amendment XII)
First tier	Imprisonment of not more than three years or criminal detention, and a fine	Imprisonment of not more than three years or criminal detention
Second tier	Imprisonment of not less than three years but not more than ten years, and a fine	Imprisonment of not less than three years but not more than ten years

 

	Crime of bribery by a unit (Amendment XII)	Crime of bribing people with influence
First tier	Imprisonment or criminal detention of not more than three years, and a fine	Imprisonment or criminal detention of not more than three years, and a fine
Second tier	Imprisonment of not less than three years but not more than seven years, and a fine	Imprisonment of not less than three years but not more than seven years, and a fine
Third gear		Imprisonment of not less than seven years but not more than ten years, and a fine

 

(2) Revision content

 

This article adjusts the sentencing range for "Bribery Crime", "Bribing a Unit Crime", "Unit Bribery Crime", and "Unit Acceptance of Bribes Crime", which to some extent matches the sentencing provisions for the corresponding bribery crimes. The specific manifestations are:

 

1. Lowered the starting point for penalties: The first range of sentencing for "Bribery Crime", "Unit Bribery Crime", and "Unit Acceptance of Bribes Crime" has been adjusted from "five years or less" to "three years or less."

 

2. Increased the severity of punishment: The "Unit Acceptance of Bribes Crime", "Unit Bribery Crime", and "Bribing a Unit Crime" have been adjusted from the original single sentencing range to two ranges.

 

(3) Lawyer's interpretation

 

The adjustment of the sentencing circumstances and range of this crime in the Amendment to the Criminal Law (XII) changes the previous single situation of criminal circumstances and sentencing penalties, which is conducive to the development of criminal judicial practice. The revision of the above-mentioned crimes not only enriches the sentencing circumstances of the crime, but also adjusts the starting point from the previous "imprisonment of not more than five years or criminal detention" to "imprisonment of not more than three years or criminal detention", and adds a sentencing range of "imprisonment of not less than three years but not more than ten years", which reduces the penalty for minor crimes and increases the punishment for serious crimes. Punishing minor crimes lightly and serious crimes severely not only increases the crackdown on the crime, but also demonstrates the principle of proportionality between crime and punishment in criminal law.

 

3. Key Points Analysis of Bribery-Related Crime Cases

 

(1) Accurately Grasp the Legal Connotation of "Seeking Illegitimate Benefits"

 

"Seeking illegitimate benefits" is the subjective element constituting bribery-related crimes and an important criterion for determining whether a briber constitutes a bribery crime in bribery-related crime cases. The six bribery-related crime names stipulated in China's Criminal Law all clearly emphasize that the briber should have the criminal intent of "seeking illegitimate benefits."

 

The Supreme People's Court and the Supreme People's Procuratorate issued the "Notice on Severely Investigating and Handling Serious Bribery Criminals While Handling Major Bribery Crime Cases", "Opinions on Several Issues Concerning the Application of Law in Handling Commercial Bribery Criminal Cases", and "Interpretation on Several Legal Issues Concerning the Handling of Bribery Criminal Cases" in 1999, 2008, and 2012 respectively, on the connotation of "seeking illegitimate benefits" made corresponding explanations and adaptive adjustments. Comprehensive above Normative documents According to the provisions and interpretations, "seeking illegitimate benefits" in bribery crimes can be summarized into the following four forms:

 

1. Seeking benefits in violation of laws, regulations, rules, or policies;

 

2. Requiring state personnel to provide assistance or convenience in violation of laws, regulations, rules, policies, and industry norms;

 

3. In commercial activities such as bidding and government procurement, violating the principle of fairness and giving property to relevant personnel to seek a competitive advantage;

 

4. Violating the principles of fairness and impartiality in economic and organizational personnel management activities to seek a competitive advantage.

 

(2) Identification of Rebates and Handling Fees in "Economic Exchange Clauses"

 

In bribery-related crimes, there is also a more special type of bribery behavior, namely "the act of giving or receiving rebates and handling fees in economic exchanges," which is involved in the fields of purchasing and selling goods or services, credit business, construction projects, etc. China's Criminal Law also regulates this type of behavior. In practice, the clauses for giving or receiving rebates and handling fees in economic exchanges are collectively referred to as "economic exchange clauses."

 

1. Regarding "Economic Exchange"

 

"Economic exchange" refers to the behavior of compensated civil and commercial activities between equal subjects, such as the sale and purchase of goods or services, and the construction of construction projects. Administrative exchanges between superior and subordinate units do not belong to "economic exchanges"; gift behaviors between equal subjects are not "economic exchanges" because they are not compensated economic activities.

 

2. Regarding "Violation of National Regulations"

 

Article 96 of the "Criminal Law": "Violation of national regulations as mentioned in this Law refers to violations of the laws and decisions formulated by the National People's Congress and its Standing Committee, the administrative regulations formulated by the State Council, the administrative measures stipulated, and the decisions and orders issued." The national regulations violated in economic exchanges usually refer to the "Anti-Unfair Competition Law", specifically Article 7, Paragraph 1: "Operators shall not use property or other means to bribe the following units or individuals in order to seek transaction opportunities or competitive advantages: (1) employees of the counterparty; (2) units or individuals entrusted by the counterparty to handle related affairs; (3) units or individuals who use their powers or influence to influence transactions."

 

3. Regarding "Rebates and Handling Fees"

 

Distinguish it from normal commercial discounts. The former is mostly received secretly, while the latter is received explicitly. The former is not recorded in the accounts, while the latter is truthfully recorded in the accounts. According to Article 7, Paragraph 2 of the "Anti-Unfair Competition Law", operators can pay discounts to the counterparty or commissions to intermediaries in an explicit manner in transaction activities. Operators who pay discounts to the counterparty or commissions to intermediaries shall truthfully record them in the accounts. Operators who accept discounts and commissions shall also truthfully record them in the accounts. In addition, distinguish its relationship with commissions. Commissions are reasonable remuneration for introducing business and belong to legitimate and legal income. From the nature of commissions, the subject of commission receipt is the intermediary, which is paid from the profits of both or one party. If one party's handler receives funds from the other party, the funds do not belong to commissions, and the handler does not belong to the intermediary. He is only a transaction agent of one party, so the funds can only be identified as rebates.

 

(3) Identification Criteria for "Voluntarily Confessing Before Prosecution"

 

Article 390, Paragraph 2 of the "Criminal Law" stipulates that a briber who voluntarily confesses to bribery before being prosecuted may be given leniency. The above legal provisions are generally referred to as the special self-surrender system or special confession system for bribery crimes, but there is no judicial interpretation to clarify its specific identification criteria. A briber's voluntary confession of bribery before being prosecuted and self-surrender are both statutory circumstances that can be given leniency. The two have both similarities and differences. The identification criteria for the former can refer to the relevant provisions of the latter. The specific manifestations are:

 

1. From the perspective of the process of arriving at the case, the establishment of "voluntarily confessing to bribery before being prosecuted" does not require the perpetrator to voluntarily surrender, and it can be passively arriving at the case. "Voluntary confession" does not require the perpetrator to be proactive in surrendering, but rather proactive in confessing the facts.

 

2. From the perspective of time requirements, the time requirement for "voluntarily confessing to bribery before being prosecuted" is "before being prosecuted", and relevant judicial interpretations further clarify it as "before the criminal filing of the briber's bribery behavior."

 

3. From the perspective of factual statements, "voluntarily confessing bribery before being prosecuted" requires the perpetrator to truthfully confess the facts of the bribery. According to the "Reply of the Supreme People's Court on Whether the Defendant's Defense on the Nature of the Act Affects the Establishment of Surrender", the defendant's defense on the nature of the act does not affect the establishment of surrender.

 

4. From the perspective of legal consequences, if a briber "voluntarily confesses bribery before being prosecuted", the "Criminal Law Amendment (XII)" stipulates that "the punishment may be mitigated or reduced. Among them, if the crime is relatively minor, it plays a key role in the investigation breakthrough and detection of major cases, or has major meritorious performance, the punishment may be reduced or exempted."

 

(IV) Correctly distinguish between crimes committed by entities and crimes committed by natural persons

 

Bribery crimes committed by entities and bribery crimes committed by natural persons are important branches of commercial bribery crimes. The constituent elements of the two types of crimes have a high degree of similarity. The main points of distinction are:

 

1. The embodiment of the will of the bribery subject is an important basis for judging individual bribery and entity bribery

 

First, whether the decision to engage in bribery was made collectively by the entity or approved by the entity's responsible personnel. Reviewing the decision-making process can determine whether the bribery was subject to the entity's control. Bribery determined by the entity's will can generally be categorized as entity bribery.

 

Secondly, whether the bribery act is carried out in the name of the entity. A bribery act carried out in the name of the entity generally belongs to entity bribery; otherwise, it is natural person bribery. By reviewing the decision-making process of the bribery act and the will reflected in it, as well as the name of the implementation of the bribery act, the subject of the bribery crime in the criminal law sense can be effectively distinguished, ensuring the accuracy of the application of the crime name.

 

2. The attribution of benefits obtained from bribery is an important basis for defining whether a bribery act is an entity bribery act or an individual bribery act

 

Article 393 of the "Criminal Law" regarding the "crime of bribery by an entity" clearly points out: "If the illegal income obtained from bribery belongs to an individual, the crime shall be determined and punished in accordance with the provisions of Articles 389 and 390 of this Law (crime of bribery by a natural person)." It can be seen that China's criminal law regards the attribution of benefits obtained from bribery crimes as one of the important criteria for distinguishing between entity bribery and natural person bribery.

 

Specifically, in terms of profit distribution, if the entity ultimately obtains the main benefit, it should be identified as entity bribery; otherwise, it is natural person bribery; in terms of profit commingling, partnership enterprises, individual industrial and commercial households, and sole proprietorship enterprises do not have property independent of the investment subject and should be regarded as natural person bribery.

 

In addition, as a special group of bribery crimes, if the legal representative of an entity implements bribery in his/her own name without a collective decision, and the main benefits belong to the entity, it should still be identified as entity bribery.

 

 

Author's Profile

 

 

Chen Zhen

 

Chen Zhen, holds a Bachelor of Laws from Guangxi University and a Master of Laws from China University of Political Science and Law. She currently serves as a Senior Partner and Deputy Director at Guangxi Tongwang Law Firm, Deputy Director of the Criminal Professional Committee of the Guangxi Lawyers Association, and a member of the Criminal Professional Committee of the All China Lawyers Association. She is also appointed as a Consultant to the Expert Assistance Group for Maintaining the Legitimate Law Enforcement Rights of the People's Police of the Public Security Department of Guangxi Zhuang Autonomous Region, an Expert Member of the Legal Service Group of the Autonomous Region Federation of Industry and Commerce, a member of the Lecturer Group for the "Guangxi Rule of Law Private Enterprise Construction" of the Autonomous Region Federation of Industry and Commerce, a Lawyer of the Autonomous Region Level Private Enterprise Lawyer Service Group, a Researcher at the Theoretical Research Base of the Nanning Municipal Party Committee United Front Work Department, and a Professional in the Third-Party Supervision and Evaluation Mechanism for Compliance of Enterprises Involved in Cases in Nanning City.