Analysis of commercial bribery; Commercial bribery may face punishment.

What kind of behavior is commercial bribery? What kind of punishment will commercial bribery face? I will share the following with you, I hope you like it! Welcome to read!

20 18, 1 Article 7 of the Anti-Unfair Competition Law, which came into effect, has greatly revised commercial bribery. In the current market environment, a large number of "industry practices", "business arrangements" and "market hidden rules" are all suspected of or even clearly belong to commercial bribery, and related enterprises and individuals have great illegal risks. For the majority of market players, figuring out the typical behaviors of commercial bribery can not only improve the ability of enterprises to cope with risks, but also avoid individuals from being censored or even imprisoned to the greatest extent.

On the Concept of Bribery

At present, under the legal system of our country, the scope of bribery mainly refers to property, that is, money and physical objects, such as cash, money transfer, houses, cars, antiques, calligraphy and painting, etc. It also includes various quantifiable property benefits, such as travel, investigation, providing free services, borrowing property for free, etc. Pure non-property interests, such as erotic bribery, children's further education, settlement of household registration, housing purchase indicators, etc. Generally, it is not regarded as a bribe.

At the legislative level, the concept of bribery is mainly found in the Interim Provisions of the State Administration for Industry and Commerce on Prohibiting Commercial Bribery (hereinafter referred to as the Interim Provisions) and the Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Commercial Bribery (hereinafter referred to as the Two Opinions).

The former stipulates that the term "commercial bribery" as mentioned in these Provisions refers to the behavior of business operators offering bribes to other units or individuals by property or other means in order to sell or buy goods. The property mentioned in the preceding paragraph refers to cash and kind, including property paid by business operators to other units or individuals in the name of promotion fees, publicity fees, sponsorship fees, research fees, service fees, consulting fees and commissions. , or in the form of reimbursement of various expenses. The other ways mentioned in the second paragraph refer to the ways of providing benefits other than property in various names, such as traveling and inspecting at home and abroad.

The latter stipulates that the property in commercial bribery includes both money and physical objects, as well as property benefits that can be calculated by money, such as providing house decoration, membership cards with money, token cards (vouchers), travel expenses, etc. The specific amount shall be subject to the customs duties actually paid.

In addition, the Supreme People's Court pointed out in the article Understanding and Application: "Non-property interests include recruitment, job change, household registration transfer and promotion. Generally, it is not regarded as a bribe, which can be used as proof that providing non-property benefits is generally not regarded as a commercial bribe.

It is worth noting that according to the provisions of the United Nations Convention against Corruption, bribery can include any improper benefits. From the perspective of semantic interpretation, in the context of the Convention, the scope of bribery is obviously not limited to property or quantifiable property interests, but also includes non-property interests.

Since the National People's Congress ratified the Convention on 27 October 2005, and the Convention itself came into force on 27 February 2005, China is obliged to incorporate the provisions of the Convention into domestic law. In the future, the scope of the crime of accepting bribes may be extended to the level of non-property interests at the legislative level, which is also a realistic requirement to crack down on "trading of power and money".

Typical bribery

Theoretically speaking, commercial bribery can be divided into two categories: one is moral bribery, which refers to the act of bribing people who hold state positions, exercise public power or have special political status; One is competitive commercial bribery, which refers to the act of bribing relevant units and individuals in order to seek or maintain market trading opportunities or competitive advantages. Bribery targets are mainly other market players and people who have influence on the transaction.

Generally speaking, countries that pursue liberal economic policies mainly prohibit moral bribery, and operators generally do not interfere with the means used in market competition. For example, the Foreign Corrupt Practices Act (FCPA) of the United States stipulates that bribers are foreign officials, foreign political parties or candidates of foreign political parties, which is a typical example of moral bribery.

On the contrary, countries that pursue the policy of state intervention in the economy not only prohibit moral bribery, but also supervise competitive bribery. China is a typical example.

Therefore, although most enterprises in China don't talk about commercial bribery as American enterprises do, in fact, the scope of commercial bribery in the legal sense in China is much wider than that in the United States, which requires enterprises to take it seriously.

At present, according to the laws of China, common commercial bribery mainly includes the following ways:

1. Bribery of property directly

Directly accepting property is the most traditional and typical bribery, which is prohibited by the Anti-Unfair Competition Law and the Criminal Law.

Give kickbacks

1993 Article 8 of the Anti-monopoly Law stipulates that an operator shall not bribe the sale or purchase of goods by property or other means. Whoever secretly gives kickbacks to the other unit or individual outside the account shall be punished as bribery; If the other unit or individual secretly accepts kickbacks outside the account, it shall be punished as accepting bribes.

As for what is "rebate", the Interim Provisions clearly stipulate that rebate refers to a certain proportion of the price of goods secretly returned by the operator to the other unit or individual in cash, in kind or other ways when selling goods. In reality, not recording in the financial books, transferring to other financial books or making false accounts are all "off-account" behaviors.

During the implementation of the old Anti-Bribery Law, there are two understandings of the relationship between "off-account secrecy" and commercial bribery. One view is that only the behavior of secretly giving kickbacks outside the account is the commercial bribery prohibited by the old law, and the behavior of other operators providing property and benefits does not constitute the crime of accepting bribes; Another view is that off-balance-sheet secrets are the constituent elements of kickbacks, and the commercial bribery prohibited by the Anti-Monopoly Law is not limited to kickbacks.

In this regard, the State Administration for Industry and Commerce clearly pointed out in its reply to the request of Su Gongshang (2000) No.88 that "keeping secrets outside the account" is a necessary condition for kickbacks rather than other commercial bribes. At present, the reply has been cleared by the General Administration and is an invalid document. However, it is inappropriate to think that "off-balance-sheet secrecy" is an important component of commercial bribery, and it is also inappropriate to think that kickbacks can be formed without "off-balance-sheet secrecy".

According to the provisions of the new Anti-Monopoly Law, business operators can pay discounts to their counterparties in an express way in their trading activities, and they should record them truthfully. Therefore, whether it is accounted for is the main criterion to distinguish between kickbacks and discounts.

The central government's opinion on bribery points out that in business activities, discounts can be given to the other party in an express and true way, and the discounts given and accepted must be truthfully recorded. Giving or accepting kickbacks secretly outside the account is a commercial bribe.

On this basis, the author believes that although the new Anti-monopoly Law has made significant changes to commercial bribery, it is still necessary to adhere to off-balance-sheet confidentiality as a necessary condition for kickbacks. If the "discount" is not recorded truthfully, it shall be deemed as the act of giving kickbacks. Otherwise, it will be impossible to distinguish between kickbacks and discounts in practice, resulting in new confusion.

3. Payment and other symbolic expenses.

Regarding various handling fees, the Opinions of the Central Leading Group against Commercial Bribery on Correctly Grasping the Policy Boundaries (hereinafter referred to as the Opinions of the Central Committee against Commercial Bribery) points out at the policy level: giving or receiving property or other benefits through gambling and in the name of promotion fees, publicity fees, advertising fees, training fees, consulting fees, technical service fees, scientific research fees, clinical fees, etc. To provide and obtain trading and service opportunities.

In practice, the acts of paying various fees explicitly prohibited by relevant laws and regulations mainly include the following:

Shopping commissions given by tourist shopping stores to travel agencies and tour guides

In the "Reply on the Qualitative Handling of Headcount Fees and Parking Fees Paid by Travel Agencies or Tour Guides in Shopping Mall", SAIC pointed out that in order to attract travel agencies and tour guides to organize tour groups to shop in shopping malls, shopping malls pay certain property to travel agencies or tour guides in the name of headcount fees and parking fees according to a certain proportion of the number of tour groups or tourists' shopping turnover, which constitutes commercial bribery.

Pay publicity fees, advertising fees and commercial sponsorship without publicity or advertising.

In the "Reply on whether the behavior of charging the other party's commercial sponsorship fee in counter joint venture can be characterized as commercial bribery", the State Administration for Industry and Commerce pointed out that publicity fees, advertising fees, commercial sponsorship, etc. Expenses that should be paid for publicity, advertising and other specific business activities. If there are no specific commercial activities such as publicity and advertising, but in the name of publicity fees, advertising fees, commercial sponsorship, etc. Public acceptance and payment of other economic benefits of the other unit or individual in the form of contract or supplementary agreement constitutes commercial bribery.

Referral fees paid by hospitals to doctors in other hospitals

The State Administration for Industry and Commerce's Reply on whether hospitals pay doctors' CT "referral fees" constitutes unfair competition, which points out that hospitals induce doctors from other hospitals to introduce patients to our hospital for CT examination or other examinations by paying various fees such as "referral fees" and "prescription fees", which constitutes unfair competition.

The beer company paid the hotel waiter a "promotion fee"

Reply of the State Administration for Industry and Commerce on the qualitative treatment of the behavior of buying bottle caps to sell beer: It is pointed out that the essence of beer companies is to recover beer bottle caps from hotel waiters by paying cash and induce hotel waiters to sell their products to customers. In order to sell goods, operators give bribes to people who have a direct impact on their goods sales. To a certain extent, its actions crowd out other operators, and it is also easy to limit consumers' right to choose, damage consumers' legitimate rights and interests, disrupt the normal market competition order, and constitute commercial bribery.

Insurance companies pay fees to housing fund management departments and insurance agents for the purpose of selling insurance.

The State Administration for Industry and Commerce's Answer on the Composition of Overcharging in Article 23 and the Calculation of Illegal Income points out that an insurance company, as an insurer designated as a provident fund loan, sells its insurance services and pays property to the housing fund management department in the name of "handling fee", which constitutes a commercial bribe.

The Reply on the Qualitative Handling of Paying and Collecting Insurance Agency Fees Exceeding Foreign Standards points out that the state has strict regulations on the payment standards of personal accident insurance's agency fees, and insurance companies compete to promote personal accident insurance by paying insurance agency fees beyond the standards stipulated by the state, which constitutes commercial bribery.

4. Commercial bribery to pay labor remuneration such as commissions and agency fees.

The new "Consumer Law" stipulates that in trading activities, operators can pay commissions to intermediaries in an express way and record them, and operators who accept commissions should also record them truthfully.

With regard to the concept of commission, the Interim Provisions stipulates that commission refers to the labor remuneration given by operators to intermediaries with legal business qualifications who provide services for them in market transactions. The central government's opinion on bribery points out that secretly giving or accepting intermediary fees outside the account belongs to commercial bribery.

Accordingly, in commercial activities, if an operator entrusts an intermediary agency to provide intermediary services and pay commissions, it shall be truthfully accounted for; If it is not recorded truthfully, it belongs to commercial bribery.

5. Reward behavior

Gifts in business communication may also be considered as commercial bribery if they exceed reasonable limits.

The central government's opinion on bribery points out that in commercial activities, small advertising gifts can be sent according to commercial practices. In violation of regulations, giving cash or kind to the other unit and its relevant personnel in the form of bonuses belongs to commercial bribery.

The "Interim Provisions" stipulates that in commodity trading, business operators shall not send cash or articles to other units or individuals except small advertising gifts in accordance with commercial practices.

However, in view of the fact that the new Anti-Law removes the counterparty from the object of commercial bribery, the author believes that under normal circumstances, the gift given by the operator to the staff of the counterparty belongs to commercial bribery. If the property is directly attached to the counterparty, it can be recognized as a discount if it is recorded truthfully, and it should be recognized as a rebate if it is not recorded truthfully.

6. Provide property benefits such as travel and inspection.

In order to seek trading opportunities or competitive advantages, it is a common hidden bribery in reality for operators to provide property benefits such as travel and inspection to relevant personnel who may affect the transaction.

In this regard, the "Interim Provisions" stipulates that providing benefits other than property in various names at home and abroad and bribing other units or individuals constitute commercial bribery. The "Two Opinions" stipulate that the property in commercial bribery includes both money and physical objects, as well as property benefits that can be calculated by money, such as providing house decoration, membership cards containing money, token cards (vouchers), and travel expenses.

In addition, the Supreme Court also discussed property interests in the article "Understanding and Application". This paper points out that there is actually a breakthrough in understanding and mastering the scope of bribery at present, and some property interests that can be directly materialized, such as free travel, free labor, debt relief, consumer warrants and so on. Sometimes it is regarded as a bribe according to the specific circumstances.

7. The trading platform gives operators "preferential payment".

The State Administration for Industry and Commerce pointed out in the Reply on the Qualitative Treatment of Merchants' Behavior of Paying Preferential Payment in Commodity Exchange Markets that the promoters of commodity exchange markets pay certain property to merchants in the name of "preferential payment" in order to attract merchants to rent booths in their own markets, which is an act of luring transactions with illegitimate interests and constitutes unfair competition.

In this regard, the author believes that, on the one hand, the way of giving preferential payments to business households belongs to normal price competition, does not violate business ethics, and does not restrict or exclude competition in an improper way. On the other hand, because the business owner is the counterparty of the trading platform, with the entry into force of the new Anti-Monopoly Law, it is generally no longer regarded as a commercial bribe.

Therefore, as long as the trading platform truthfully accounts for the preferential payments given to business households, it should not be considered as commercial bribery in the spirit of the new Anti-Monopoly Law.

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