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China: Judicial Interpretation on Crime of Giving Bribes to Government Officials

(Jan. 8, 2013) On December 26, 2012, China’s Supreme People’s Court and Supreme People’s Procuratorate jointly issued a judicial interpretation on the crime of giving bribes to state functionaries. (Text of the Interpretation [in Chinese], Supreme People’s Court website (Jan. 4, 2013); The Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate of Several Issues Concerning the Specific Application of the Law in the Handling of Criminal Bribery [unofficial English translation], Covington & Burling LLP (last visited Jan. 7, 2013).)

The term “state functionaries” is defined by Chinese law to mean persons who perform public service in state organs. Other persons who perform public service in state-owned enterprises, state institutions, or people’s organizations, as well as persons who are assigned by state organs, state-owned enterprises, or state institutions to private companies, enterprises, or institutions to perform public service are also deemed state functionaries by the Criminal Law. (Criminal Law promulgated by the National People’s Congress on July 1, 1979, revised on Mar. 14, 1997, effective Oct. 1, 1997, last amended Feb. 25, 2011, art. 93, Xinbian Zhonghua Renmin Gongheguo Changyong Falu Fagui Quanshu [New Complete Frequently-Used Laws and Regulations of the People’s Republic of China] 6-9 (2012).) Previously, government officials who took bribes were prosecuted more frequently than persons giving bribes. (Luo Meihui & Tang Juntao, Dangqian Chachu Xinghui Anjian de Xianzhuang, Yuanyin ji Duice [Current Status of Prosecution of Giving Bribes and Its Reasons and Resolutions], JCRB.COM (Nov. 11, 2010).) Issuance of the Interpretation may imply broader prosecution of bribe-givers in the future.

According to the Interpretation, any person found to have paid a bribe of more than RMB10,000 (about US$1,600) to a state functionary to seek illegitimate benefits will be criminally prosecuted in accordance with the Criminal Law. (Interpretation, art. 1.) Under ordinary circumstances, conviction entails a fixed-term of imprisonment of not more than five years or short-term detention. (Criminal Law, art. 390.)

When the circumstances are “serious,” the punishment may be raised to a fixed-term of imprisonment of five to ten years. “Serious circumstances” normally refers to the amount of the bribe being more than RMB200,000 but less than RMB1 million, according to the Interpretation. If the amount is less than RMB200,000 but more than RMB100,000, the circumstances may still be deemed to be serious, if the bribes are given to state functionaries in certain areas, including the food, drugs, safe production, and environmental protection administrations, and the acts seriously harm the public interest and endanger people’s lives and property, or if the bribes are given to officials in law enforcement departments, judges, or prosecutors, which affects administrative enforcement and judicial justice. (Interpretation, art. 2; Criminal Law, art. 390.)

The punishment may be as severe as life imprisonment or a fixed-term of imprisonment of not less than ten years, together with confiscation of property, if the circumstances are “especially serious.” The Interpretation defines as “especially serious” cases in which the amount of the bribes is more than RMB1 million. If the bribes are less than RMB1 million but more than RMB500,000, the circumstances may still be “especially serious” if the bribes are given to state functionaries in the above-mentioned types of areas. (Interpretation, art. 4; Criminal Law, art. 390(1).)

The Interpretation further provides that where a bribery case is uncovered because a briber voluntarily confesses the bribery act before he is prosecuted, the punishments against him or her may be mitigated or waived, which is in accordance with Criminal Law article 390(2). (Interpretation, art. 7.) Bribers are also encouraged to report other criminal acts of state functionaries who take bribes; if such reports are found to be accurate, the briber’s sentence may be reduced, mitigated, or even waived. (Interpretation, art. 9.)