By Wu Wei and Su Shaohua King & Wood’s Dispute Resolution Group
Under China’s anti-bribery laws, the value of bribes in commercial bribery cases is calculated on a cumulative basis in the conviction and sentencing process. However, such calculations may yield varying results in practice. According to our experience, due to a lack of clarity in the law and various policy rationale for fighting corruption, cumulative calculations give rise to risks of criminal liability, whether seen as accepting or offering bribes.
I. Calculation of Value for Bribes Accepted
A. Legislation
a. The second paragraph of Article 383 of the Criminal Law of the People’s Republic of China(1) ("Criminal Law") provides:" Toward those who have committed repeated crimes of graft, all amounts of graft of unhandled cases are to be added in meting out punishment." Article 386 of Criminal Law provides:" whoever commits the crime of accepting bribes is to be punished on the basis of Article 383 of this law according to the amount of bribes and the circumstances. A heavier punishment shall be given where a bribe was specifically demanded."
b. Answers of the Supreme People’s Court and Supreme People’s Procuratorate on Several Issues Concerning the Implementation of Supplementary Provisions on Punishing Corruption and Bribery Crime(2) provides:
"unhandled cases of committing repeated crimes of graft means where a grafter commits two or more graft practices but neither receives criminal punishment (including immunity from prosecution and exemption from criminal sanctions) nor receives administrative sanctions. The calculating of the amount of graft shall comply with the period of prosecution in criminal law, the amount of corruption within the period for prosecution should be on a cumulative basis. Expiry of the statute of limitations period has shall not be counted in the amount of corruption."
B. Judicial Practice
Based on the second paragraph of Article 383 of Criminal Law, the principle of penalties for the crime of bribery is:" Toward those who have committed repeated crimes of graft, all amounts of graft of unhandled cases are to be added in meting out punishment." There are two controversial issues, the first is about the different interpretations of "repeated crimes" and the second is about the different interpretations of "unhandled". It is unclear whether "unhandled" refers to: (1) not having received criminal punishment and not having received Chinese Communist Party ("CCP") discipline and administrative sanctions, or (2) only to not receiving criminal punishment. There are no clear definitions about the above issues in PRC criminal laws. According to the PRC government’s anti-corruption policy and provisions "in lighter cases, they will be given administrative action to be decided by the unit to which they belong to or the higher administrative authority" in item 4 of Article 383 of the Criminal Law, "repeated crimes" and "unhandled" may be understood as neither receiving criminal punishment nor receiving CCP discipline and administrative sanctions or refers only to not receiving criminal punishment in judicial practice.
There are the following different circumstances in judicial practice:
a. Repeatedly accepting bribes, each constituting a criminal offence
If repeated crimes are committed within the time limitation of criminal prosecution and have not been punished (including criminal punishmentand administrative sanctions), the bribery amount will be cumulatively calculated.
b. Repeatedly accepting bribes, some cases constituting criminal offences
The bribery amount has legal risks to be cumulatively calculated if the repeated crimes are conducted within the time limitation of criminal prosecution and have not been punished. For those who have not constituted criminal offences, there have been cumulative calculation cases in judicial practice, such as accepting small gifts on holidays.
c. Repeatedly accepting bribes, none of those cases constituting criminal offences separately. But those cases could be considered criminal offences by cumulative calculation.
This is the most controversial case. Firstly, "unpunished crime" includes criminal punishment and administrative sanctions. There are legal risks for considering these cases as commercial bribery by cumulative calculation. Secondly, in criminal law theory, the "Xu Xing Crime" means that repeated acts constitute crimes by cumulative calculation even though each act cannot be considered a criminal offence. Thirdly, in judicial practice, there are many criminal offences in accepting bribes if the cumulative amount meets the bribery crime standard. In brief, there are still legal risks to be convicted commercial bribery crime by cumulative calculation on this occasion.
II. Cumulative Calculation of Commercial Bribery Amount in Crime of Offering Bribes
A. Legislation
a. Article 11 of the Provisions of the Supreme People’s Procuratorate and the Ministry of Public Security on Filing and Prosecution of Criminal Cases Governed by Public Security Authorities (II)(3) provides," in the case of offering bribes to employees of companies, enterprises or other units for illegitimate benefits(4), cases shall be filed to prosecute the party concerned for individuals offering amount of over RMB10,000 and for units offering amount of over RMB200,000."
b. Article 1 of the Provisions of the Supreme People’s Procuratorate on Offering Bribes Filing Standard(5) provides," any person who offers money or property to a state functionary in order to gain illegitimate benefits shall be considered as offering bribes.
Such a person may be charged with the above criminal offense if he/she:
i. Offers bribes of RMB 10,000 or above;
ii. Offers bribes of less than RMB 10,000, but with one of the following circumstances: (1) in order to gain illegitimate benefit; (2) offers bribes to 3 people and more; (3) offers bribes to party and government officials, judicial officers, administrative law enforcement officials; (4) offers bribes causes great damages to national or public interests.
c. Article 13 of the PRC Criminal Law provides," however, if the circumstances are obviously minor and the harm is not serious, the act shall not be considered a crime."
B. Judicial Practice
According to the above-mentioned provisions, the criminal offence filing standard of the bribery crime is based on the amount standard and other standards in judicial practice.
There are following circumstances in judicial practice for offering bribes:
a. Repeatedly offering bribes, constituting criminal offences every time
If the repeated crimes are conducted within the time limitation of criminal prosecution, the bribery amount will be cumulatively calculated in conviction and sentencing.
b. Repeatedly offering bribes, some cases constituting criminal offences
The bribery amount has legal risks to be cumulatively calculated if the repeated crimes are conducted within the time limitation of criminal prosecution.
c. Repeatedly offering bribes, none of those cases constituting criminal offences separately. But those cases could be considered criminal offences by cumulative calculation.
There are risks for commercial bribery amount to be cumulatively calculated in such circumstance.
In summary, the most tricky issue in judicial practice is to consider whether the nature of the act falls within offering bribery. "Any person who offers money or property to a state functionary in order to gain illegitimate benefits shall be considered as offering bribes." If the actor do not have the illegitimate benefits purpose (giving gifts on holidays) or the property offered is intangible (offering job opportunity), such act shall not be considered as offering bribes. If the act is considered as offering bribes and the case constitutes criminal offence, there is a high risk it will be grounds for conviction as a commercial bribery crime.
Notes:
1、The Criminal Law of the People’s Republic of China was revised on 25 February 2011 and became effective upon promulgation by the National People’s Congress.
2、Answers of the Supreme People’s Court and Supreme People’s Procuratorate on Several Issues Concerning the Implementation of Supplementary Provisions on Punishing Corruption and Bribery Crime was promulgated on Nov 6, 1989 and came into force as of the promulgation date.
3、The Provisions of the Supreme People’s Procuratorate and the Ministry of Public Security on Filing and Prosecution of Criminal Cases Governed by Public Security Authorities (II) was promulgated on May 7, 2010 and came into force as of the promulgation date.
4、"Illegitimate benefits" means that the actors are seeking benefits which are against the law, administrative regulations and policies, and requesting the state functionary or relevant agency to provide assistance and convenience against the law, administrative regulations and policies.
5、The Provisions of the Supreme People’s Procuratorate on Offering Bribes Filing Standardwas promulgated on December 7, 2000 and came into force as of the promulgation date.