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China: Eighth Amendment to Criminal Law Passed

(Apr. 7, 2011) Effective from May 1, 2011, Chinese citizens and companies paying bribes to foreign government officials and officials of international public organizations will be subject on conviction to criminal punishments that may be up to ten years of imprisonment and a fine. This comes from the Eighth Amendment to the Criminal Law, adopted by the Standing Committee of China's National People's Congress (NPC) on February 25, 2011. The 50-article Amendment will take effect on May 1, 2011. (Amendment to the Criminal Law of the People's Republic of China (8) [in Chinese] [hereinafter Amendment] (Feb. 25, 2011), NPC official website.)

Previously, on August 28, 2010, the NPC had published on its website the full text of the draft Amendment, in order to solicit public opinions on the proposed revisions. (Laney Zhang, China: Full Text of Draft Eighth Amendment to Criminal Law Published, GLOBAL LEGAL MONITOR (Sept. 28, 2010).) The final version of the Amendment made some minor changes to the draft, among which the following two are worth noting:

– Lenient rules for seniors. The draft Amendment included for the first time the provision that seniors who are 75 years or older at the time of trial would without exception be exempted from the death penalty. The final version of the Amendment, however, added one exception to the exemption: if the senior causes another person's death by especially cruel means. (Amendment, art. 3, supra.)

– Heavier penalties for forcing others to do labor. The draft raised the maximum number of years of imprisonment for those convicted of forcing other persons to do labor from three years to seven. The final version of the Amendment went further, raising the seven-year penalty to ten years. (Id. art. 38.)

In addition to reducing the number of crimes that may be subject to the death penalty (Laney Zhang, China: Death Penalty Crimes to Be Reduced, GLOBAL LEGAL MONITOR (Aug. 31, 2010).), another key change made by the Amendment is to criminalize foreign bribery. A paragraph is added to article 164 of the Criminal Law to provide that “[w]hoever, for the purpose of seeking illegitimate commercial benefit, gives property to any foreign public official or official of an international public organization, shall be punished in accordance with the provisions of the preceding paragraph,” (which provides for up to ten years' imprisonment and a fine for violators if the bribe is “huge”). (Covington & Burling LLP, China Amends Criminal Law to Cover Foreign Bribery, COVINGTON E-ALERT & ADVISORY (Mar. 1, 2011); Amendment, art. 29, supra.) The Amendment does not provide any affirmative defenses or exceptions to, or exemptions from, the provisions of article 164. In the view of some practicing lawyers in China, the effectiveness of the Amendment in preventing overseas bribery will largely depend on the judicial interpretation and enforcement of its provisions. (Covington & Burling LLP, supra.)