Beijing: Judicial Interpretations to Clarify Commercial Bribery

Recently, the Supreme People’s Court and Supreme People’s Procuratorate jointly promulgated the Opinions on Certain Issues Concerning Application of Laws in Handling Criminal Cases of Commercial Bribery (the “Opinions”).

The Opinions clarified certain aspects of application of law in criminal cases of commercial bribery, i.e., (i) scope of commercial bribery; (ii) scope of subject of this crime; (iii) criminal liability for commercial bribery in specific sectors, such as pharmaceutical procurement and sales, construction, government procurement; (iv) delineation of illegitimate interest in commercial bribery; (v) legal basis for determining accomplice in commercial bribery.

Particularly, the Opinions addressed the issue of how to distinguish gifts between friends (which are common in a “relationship” society of China) and commercial bribery. Four factors should be taken into account: (i) historical relationship between the parties; (ii) amount of gifts; (iii) cause, timing and means of offering the gifts, especially whether to request the recipient to do something by taking advantage of his/her position; and (iv) whether the recipient takes advantage of his/her position to do that favor.
Given the complexity of commercial bribery in business practice, the Opinions also expanded the crime into offering not only property but also other proprietary interests or benefits.