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3 May 2016
On April 18, 2016, the Supreme People’s Court and the Supreme People’s Procuratorate jointly published Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Embezzlement and Bribery (Fa Shi 〔2016〕 No. 9, the “Judicial Interpretation”). The Judicial Interpretation clarifies the sentencing criteria and constituent requirements of bribery crimes, and is another significant step taken by the Chinese government to strengthen the punishment of bribery crimes. The most notable provisions are set out below.
Generally, crimes of taking bribes contain elements including taking advantage of his/her position, extorting money or property from another person, or illegally accepting another person’s money or property, and securing benefits for the person. The Judicial Interpretation specifically clarifies the sentencing criteria, the definition of money and property, and the meaning of securing benefits for the person.
1. Sentencing Criteria
For state functionary bribery crimes, Chinese laws have recently made several adjustments to the sentencing criteria. In 1997, the Criminal Law specified the threshold amounts which constitute different severity levels for bribery crimes, i.e. RMB 5,000, RMB 50,000 and RMB 100,000. In November 2015, the Amendment (IX) to the Criminal Law revised such sentencing criteria to “relatively large”, “huge” and “especially huge”, which the Judicial Interpretation clarified to mean RMB 30,000, RMB 200,000 and RMB 3,000,000, respectively. Furthermore, the Judicial Interpretation also specifies that anyone who takes or offers bribe(s) of RMB 10,000 to RMB 30,000, when coupled with other relatively serious circumstances, may be sentenced to a fixed term of imprisonment. This reflects the Chinese government’s determination to strictly crack down on bribery crimes at all levels.
For bribery crimes committed by companies, enterprises or other entities employees, the Judicial Interpretation stipulates any bribe(s) of more than RMB 60,000 will lead to a fixed term of imprisonment.
2. “Money and Property”
In response to the developing trends for bribery crimes, in 2008, Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Commercial Bribery (the “Opinions”), jointly published by the Supreme People’s Court and the Supreme People’s Procuratorate, clarified that, money and property in bribery crimes include not only money and tangible assets, but also benefits that can have monetary value, with the amount of the bribe being determined based on the actual amount paid by the person offering the bribe. Now, the Judicial Interpretation, which serves as a higher level of judicial rule than the Opinions, reemphasizes that “money and property” in bribery crimes include benefits, such as membership services and travelling expenses, and the actual payment or fair market value should be used in determining the amounts involved in a bribery crime.
3. “Securing Benefits for the Person”
“Securing benefits for the person” is another material constituent requirement for bribery crimes. In judicial practice, it is universally acknowledged by Chinese courts that a promise to do so can be deemed as “securing benefits for the person”. The Judicial Interpretation confirms the judicial practice and specifically clarifies “securing benefits for the person” as:
It is worth noting that such provisions clarify that neither “actually obtaining benefits” nor “being entrusted in advance” is a necessary element for constituting “securing benefits for the person”.
Overall, the Judicial Interpretation (effective on April 18, 2016) has become the standard for judicial authorities to try bribery crimes cases in the future. The Judicial Interpretation reflects the policy trend that the Chinese government is strengthening the punishment for bribery crimes and thus deserves closer attention.