《反腐败与合规》（一）(English version)

Anti-Corruption Laws and Practice in the People’s Republic of China*
*This Chapter was drafted by Jun He Law Offices’ Dispute Resolution team (in Beijing and Shanghai), led by Partners Weining ZOU, Christine KANG, Lei WU and Nan HU, with the contribution by Associates Simon YI, Xiao YIN, Mingqing CHEN, Xin JIANG, Zimu LI, Wei LIU, Long RAO and Xuan JIANG (trainee). This Chapter would not have been possible without the substantial support and contribution by the team members who made time to draft and review this Chapter during the team’s busiest time of the year. Additionally, special thanks are owed to John CHU, a corporate partner based in Jun He’s Beijing Office who also contributed to drafting the Chapter, and John DU, a corporate partner based in Jun He’s New York Office, who supported the organization and drafting of the Chapter.
I、INTRODUCTION
A. Brief Introduction to Anti-Corruption Enforcement in China
The Chinese government has been making great efforts to combat corruption and ensure a clean government. For example, shortly after taking office, President Xi Jinping stated on January 22, 2013, that “[w]e must uphold the fighting of tigers and flies at the same time, resolutely investigating law-breaking cases of leading officials and also earnestly resolving the unhealthy tendencies and corruption problems which happen all around people.”
These efforts have yielded notable results. At the Fifth Plenum of the 18th Central Commission for Discipline Inspection (CCDI) held on January 13, 2015, President Xi confirmed the significant results China has achieved in anti-corruption in the year 2014, emphasized the importance of anti-corruption, and pointed out that anti-corruption is the common aspiration of all Chinese people, which will provide us strength and lead us to the final success in anti-corruption. According to official statistics released by the CCDI, in 2014 around 700 officials were disciplined. And according to the Supreme People’s Procuratorate in China, in 2014 about 39,782 crimes were filed related to violations of officials’ public duties. Mr. Wang Qishan, the Secretary of CCDI, also focuses on the importance of learning the spirit from President Xi’s instruction, and emphasizes that all Communist Party of China (CPC) members should be well prepared for a protracted war against corruption.
China’s domestic anti-corruption efforts have coincided with increased cooperation between China and foreign countries. As of 2014, China is a party to approximately 40 bilateral extradition treaties and 52 criminal judicial assistance treaties. In November 2014, the Asia-Pacific Economic Cooperation (APEC) forum’s members (including China) adopted the Beijing Declaration on Fighting Corruption. In this Declaration, APEC’s members called for “more concerted efforts for international cooperation” in anti-corruption enforcement.[1] Consistent with the Beijing Declaration on Fighting Corruption, China is making significant use of international assistance. For example, China’s “Operation Fox Hunt,” an effort to return to China overseas fugitives and their assets, has attracted worldwide attention and involves assistance from 69 countries and regions. As an example of the breadth of this operation, one of the arrested had absconded for more than 22 years. Based on the latest news released, as of 2014 the Chinese Ministry of Public Security had arrested around 680 fugitives being suspected of committing economic crimes, which equals 4.5 times the persons arrested in 2013. The amount involved by 74 of the arrested in 2014 exceeds RMB100,000,000.
B. Brief Introduction to Anti-Corruption Laws
There is no single anti-corruption law or code in the People’s Republic of China[2] (China or PRC). Relevant provisions on anti-bribery are scattered across different PRC laws, regulations, judicial interpretations and governmental disciplines covering various industries. In China, the word “corruption” in the context of bribes to public officials is generally understood as governmental officials abusing their powers or exploiting their positions to provide illegal or improper benefits to a person or entity who offers the bribe. This Chapter will explore the various ways that this general understanding is expressed in different contexts.
C. Brief Introduction to Anti-Commercial Bribery Laws
In China, there is also the concept of “commercial” bribery. The concept carries a much broader scope, however, than it does in other anti-bribery enforcement regimes. In certain other jurisdictions, “commercial” bribery is understood as limited to bribery between private parties, i.e., bribery not involving public officials. In China, “commercial” bribery is understood as bribery related to commercial communications and transactions generally, including bribery of public officials in order to obtain commercial business.
The Chinese government has made significant enforcement efforts regarding anti-commercial bribery enforcement, including adopting a series of laws and regulations against commercial bribery. In the several years leading up to 2014, the Chinese government significantly increased its investigation and punishment of commercial bribery, especially in the fields of construction, land transfer, property exchange, medicine distribution, government procurement, and resource development and distribution.
Chinese anti-commercial bribery rules can be found in criminal laws, administrative laws and regulations, judicial interpretations, meeting minutes, statements from the Supreme People’s Court and the Highest Procuratorate, and guiding cases. [3]These rules not only prohibit the giving of bribes, but also receiving bribes in commercial communications or transactions. They apply not only to bribes provided to government officials, foreign governmental officials, and officers in international organizations, but also to bribes provided to non-state employees of commercial enterprises. They apply not only to bribe-receiving conduct by an individual but also by a legal entity, referred to in Chinese legal parlance as a “unit.” These rules apply not only to bribes provided to an individual or to a unit by another individual, but also to bribes provided to an individual or a unit by another unit.
[1]2014 APEC Ministerial Meeting, Joint Ministerial Statement, Annex H, Beijing Declaration on Fighting Corruption (Nov. 8, 2014).
[2]For the purpose of this chapter, the Hong Kong Special Administrative Region, Macau Special Administrative Region and Taiwan are not included.
[3]Guiding cases mean those cases with significance. They are always collected and then published by the Chinese Supreme People’s Court (SPC) as some sort of guidance for lower courts in judging cases. Because China is a civil law country, case precedent is not a source of law, and guiding case law can be understood as a sort of counterpart to it.
Chapter I, entitled “Introduction” by Christine KANG, Nan HU, Lei Wu, and John Chu reprinted with permission from Anti-Corruption Law and Compliance: Guide to the FCPA and Beyond by Kevin T. Abikoff, John F. Wood, and Michael H. Huneke and published by Bloomberg BNA, © 2015 by The Bureau of National Affairs, Inc.