By King & Wood Mallesons’ Compliance Group
On December 26, 2012, the Supreme People’s Court and the Supreme People’s Procuratorate jointly released the “Interpretation on Certain Issues Concerning the Application of Law in the Handling of the Criminal Cases of Offering Bribes“(the “Interpretation”). This Interpretation comes into effect as of January 1, 2013. The Interpretation specifies how the relevant provisions of the Criminal Law pertaining to the offering of bribes are to be applied.
The crime of offering bribes refers to the crime of offering money or property in kind to a state functionary with the intent to acquire illegal enrichment or interest. According to relevant provisions in the Criminal Law, state functionaries are persons who perform public service in state bodies, state-owned companies or, enterprises, institutions or people’s organizations. Additionally, persons who are assigned by state bodies, state-owned companies, enterprises or institutions to non-state-owned companies, enterprises or institutions to perform public service, and other persons who perform public service according to the law, shall all be regarded as state functionaries.
The Interpretation stipulates that any person offering a bribe of more than RMB 10,000 to a state functionary shall be charged with criminal liability. If there are other bribes which have not been punished, the briber shall be punished based on the accumulated amount of the bribes. In addition, the Interpretation clarifies some abstract descriptions in the Criminal Law, such as “serious circumstance”, “seeking illegitimate interests” and “causing a heavy loss to the state interests”. Compared with the former provisions which lacked a penalty threshold or amount for sentencing, the Interpretation strengthens the countermeasures and promotes enforceability and uniformity in judicial practice.
The Interpretation specifies that before the prosecution authority formally files a criminal case, if a briber discloses a crime of accepting bribes related to the briber’s offering of bribes, the briber may be given a mitigated punishment or be exempted from punishment. If a briber discloses a crime not related to the briber’s offering of bribes, which has been verified, the disclosure shall be deemed a commendable act.
Generally, the Interpretation strengthens the impact on bribery while making relevant provisions more specific and detailed in order to restrict the court’s right of discretion. Meanwhile, the Interpretation also demonstrates an inclination to encourage disclosure of behavior relating to offering and accepting bribes, which will further deter and crack down these crime.
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