B.Law Enforcement Procedure Against Bribery in China
1.Criminal Procedure Against Bribery
a.PSB Procedure
i.Acceptance of Crime Report
PSB shall immediately accept all reports of bribery or voluntary surrenders and shall record detailed information in writing or in the form of audio or video recordings.[1]
Administrative institutions may also report commercial bribery to the PSB if they find in their administrative investigations that such commercial bribery may have violated criminal law.
ii.Preliminary Case Review and Commencement of Investigation
After PSB accepts the bribery report or voluntary surrender, it will conduct a preliminary review of whether the bribery is in violation of an existing criminal law. If PSB deems that such facts exist, it will register the case and formally start investigation. If PSB deems that there was no bribery or the suspected bribery was too trivial to be charged with any criminal liability, it will not register the case and thus will withdraw the investigation.[2]
If PSB accepts a bribery report transferred by other administrative institutions in administrative investigations, it shall within three days conduct a preliminary case review and decide whether to start a criminal investigation or return the case to the administrative institution.[3]
iii.Investigation
Once the investigation is started, PSB will conduct a complete and thorough investigation and collect all possible evidence that may prove the guilt or innocence of the suspect.[4]
During the investigation, PSB may take compulsory measures and other investigation measures against suspects or relevant individuals or entities,[5] including but not limited to the following:
PSB may interrogate the suspect in a place designated by PSB where the suspect is subpoenaed or at the domicile of the suspect.[6]
PSB may question witnesses or victims at the scene of the crime, at their companies, domicile, a place suggested by them or, when necessary, at the place where PSB is located.[7]
PSB may hold an inquest or examine the scene, objects, body or corpse related to the crime and extract samples therefrom.[8]
PSB may search the body, object, residence or any other place where suspects or evidence of crimes may be located.[9]
PSB may seize property or documents that may prove the suspect’s innocence or guilt.[10]
PSB may inquire about or freeze properties of the suspect.[11]
PSB may entrust experts to conduct Certification and Accreditation reviews on issues that require certain expertise.[12]
PSB may ask victims, witnesses, or suspects to identify objects, documents, corpses, scenes, or suspects.[13]
PSB may issue arrest warrants for a suspect in exile.[14]
PSB may ask a suspect to provide a guaranty on bail.[15]
PSB may conduct residential surveillance on suspects.[16]
PSB may detain suspects or individuals with gross suspicion.[17]
PSB may, upon approval of the Procuratorate, arrest a person who is suspected to have committed crimes who may be sentenced to imprisonment if bail would not prevent the danger the suspect poses. PSB, upon approval of the Procuratorate, shall arrest any suspect who is suspected to have committed crimes who may be sentenced to 10 years of imprisonment or more and who has committed an intentional crime.[18]
PSB may detain suspects for up to two months after arrest without seeking approval from the Procuratorate. The detention period may extend for another one month upon approval of the Procuratorate at the upper level of PSB and may further extend for two more months upon approval of the Procuratorate at the provincial level.[19] As for persons who are suspected to have committed crimes that may be sentenced to 10 years of imprisonment or above, the detention period may further extend for another two months upon approval of the Procuratorate at the provincial level.[20]
PSB may finalize the investigation and transfer the case by submitting a letter of proposal for prosecution and all evidence collected to the Procuratorate,[21] when the following conditions[22] are satisfied:
Facts are clearly investigated;
Evidence collected is concrete and sufficient;
Nature and name of the crime is correctly identified;
Legal procedure is duly followed; and
The suspect will bear criminal liabilities due to the investigated crime.
After the case is transferred, the Procuratorate may conduct further investigation by itself[23] or ask PSB to conduct a supplementary investigation. The supplementary investigation shall be completed within one month and can only be conducted twice at most.[24]
PSB will withdraw the investigation, however, if the following conditions[25] are satisfied:
No fact of a crime is found;
The investigated act is too trivial to be deemed as a crime;
Statutory limitation is due;
Amnesty is issued;
The suspect is dead; or
Other conditions are present that absolve the suspect of criminal liabilities under the law.
b.Procuratorate Procedure
After the case is transferred from PSB to the Procuratorate, the Procuratorate shall decide within one month (or, in the case of completed and important cases, one and a half months) whether to initiate a public prosecution.[26]
The Procuratorate may decide to initiate a public prosecution and transfer all case documents to the court when the following conditions are satisfied:[27]
The facts of the crimes are clear;
Evidence is concrete and sufficient; and
The suspect shall bear criminal liabilities due to the crime.
The Procuratorate shall decide not to initiate a public prosecution when any one of the following conditions is satisfied[28]:
No fact of a crime is found;
The investigated act is too trivial to be deemed as a crime;
The statute of limitations has run;
Amnesty is issued;
The suspect or defendant is dead;
The crime should have been pursued by a private suit but the victim did not bring any private prosecution;
Any other condition under which the suspect shall not bear criminal liabilities according to the laws.
The Procuratorate will choose not to initiate a public prosecution if the crime will not lead to any criminal penalty.[29]
c.Court Procedure
i.First Instance Procedure
A court shall render judgment on a case of public prosecution within two months, or three months at the latest, after accepting it. With regard to a case in which the death sentence may be imposed, a case with a parallel or related civil action, or a case under any of the circumstances as stipulated in Article 156 of the PRC Criminal Procedure Law, the period may be extended by three months, subject to the approval of the People’s Court at the higher level; where the period needs to be further extended due to special circumstances, it shall be reported to the Supreme People’s Court for approval.[30]
As for the case of a private prosecution where the defendant is not in custody, the court shall pronounce judgment within six months after accepting it.[31]
ii.Summary Procedure
A case in the jurisdiction of the Basic People’s Court may be tried through summary procedure, where it meets the following conditions:[32]
The facts of the case are clear and the evidence is sufficient;
The defendant acknowledges his crime and has no objection against the alleged criminal facts; and
The defendant has no objection against the application of the summary procedure.
For a case to be tried through summary procedure, the court shall conclude it within 20 days after accepting it; for a case in which a fixed-term imprisonment of more than three years may be imposed, the prescribed period may be extended to one and a half months.[33]
iii.Second Instance Procedure
After accepting a case of appeal or protest, the court of second instance shall conclude the trial of the case within two months. With regard to a case in which the death sentence may be imposed, a case with an incidental civil action, or a case which is under any of the circumstances stipulated in Article 156 of the PRC Criminal Procedure Law, subject to the approval or decision by the Higher People’s Court at the provincial level, the period may be extended by two months; where the period needs to be further extended due to special circumstances, it shall be reported to the Supreme People’s Court for approval.[34]
2.Administrative Procedure
a.Administrative Investigation
i.Case Filing
Under PRC laws, an AIC has the power to find, investigate, and sanction commercial bribery based on its power of supervision and inspection, or through channels the complaint, appeal, report, or materials were transferred to by another authority, or assigned by a superior authority.[35]
Within seven working days of receiving a complaint, appeal, or report or materials transferred from another authority or assigned by a superior authority, the AIC will examine the same and decide whether or not to file a case. Under special circumstances, the time limit for deciding whether or not to file a case may be extended to 15 working days.[36]
ii.Investigation and Collection of Evidence
After a case is filed, the AIC will start to investigate and collect evidence.[37] In the investigation of any case, the number of AIC staff shall not be less than two. When investigating or collecting evidence, AIC staff shall wear AIC uniforms and present the AIC Law Enforcement Certificates.[38]
The evidence that AIC staff is to gather may include documentary evidence, physical evidence, witness testimonies, audiovisual materials and computer data, statements of the party concerned, evaluation conclusions, and investigation records or records made on the spot.[39]
iii.Conclusion of Investigation
When the commercial bribery investigation is completed, a case shall be handled in one of the two following manners:[40]
If it is determined that the commercial bribery is true and an administrative sanction shall be imposed, an investigation conclusion report shall be prepared and an administrative sanction proposal shall be drafted and examined by the examination body together with the case documents. The investigation conclusion report shall include the basic information on the party concerned, the alleged fact of violation, the relevant evidence and matters proved, the nature of the case, the reasons for discretion, the basis for sanction, and the sanction proposal;
If the commercial bribery is found to be a false one, the case shall be closed;
If the commercial bribery is true but the violation is trivial and no damaging results are caused, no administrative sanction will be imposed;
If the case is not within the jurisdiction of this authority, the case will be transferred to an administrative institution with jurisdiction; or
If the commercial bribery may have violated a criminal law, the case will be transferred to the judicial authority.
iv.Examination
Following investigation, examination authorities in an AIC will examine the commercial bribery case and provide examination opinions in one of the following manners:[41]
For any case with clear facts, authentic evidence, an accurately applied legal basis and qualitative identification, proper sanctions, and legitimate procedures, the Examination body in the AIC will provide examination opinions that agree with the opinions of the investigating body;
For any case with inaccurate qualitative identification, a wrongfully applied legal basis, and improper sanctions, the Examination body in AIC will suggest an investigating body to make amendments;
For any case with unclear facts and insufficient evidence, the Examination body will suggest an investigating body to supplement;
For any case with illegitimate procedures, the Examination body will suggest an investigating body to make rectification;
For any case where the alleged facts of violation are untrue or the time limit for legal responsibility has expired, the Examination body will suggest an investigating body to close the case;
For any case where the alleged facts of violation are minor and have been rectified timely and no serious damage was caused, the Examination body will suggest an investigating body not to impose administrative sanctions;
For any case beyond its jurisdiction, the Examination body will suggest the investigating body to duly transfer the case; and
For any case with criminal suspicion, the Examination body will recommend transferring the case to judicial authorities.
v.Sanction Decision
The AIC will deliver its sanction decisions after reviewing the investigation conclusion report, examination opinion, report of hearing, statement and argument opinions of the party concerned, and the proposed administrative sanction. The forms of decision include:
To impose administrative sanctions;
To close the case;
Not to impose administrative sanctions; or
To transfer the case to another authority.[42]
b.Administrative Sanctions
In the event of commercial bribery, AIC may, according to the specific circumstances, impose a fine of not less than RMB10,000 but not more than RMB200,000. Illegal income involved, if any, shall be confiscated.[43]
If the party fails to perform the administrative sanction within the prescribed time limit, AIC may take the following measures:[44]
In the case of failure to pay the fine in time, an additional fine shall be imposed amounting to 3 percent of the original fine on a daily rate basis;
The sealed up or seized property may be put to auction to pay the fine, or appropriation of the frozen bank deposit can be made for payment of the fine; and
The AIC may apply to the People’s Court for compulsory execution.
If the sanctioned party refuses to accept the decision made by the AIC, such party may, within 15 days upon receipt of the sanction decision, apply to the competent authority at the next higher level for reconsideration. If the party still refuses to accept the decision made after reconsideration, the party may, within 15 days upon receipt of the written decision made after reconsideration, initiate administrative litigation against the authority that made the sanction decision with the court. The party may also directly initiate administrative litigation against the authority that made the sanction decision with the court upon receipt of the decision.[45]
3.Bridges Between Administrative Procedures and Judicial Procedures
a.From Judicial Procedures to Administrative Procedures
If the circumstances of the act are minor and do not trigger criminal liability, an exemption from criminal sanctions may be granted to the individual or entity. But such act may, according to the different circumstances of each case, be reprimanded or ordered to make a statement of repentance or formal apology or make compensation for losses, or be subjected to administrative penalties or sanctions by the competent department.[46]
b.From Administrative Procedures to Judicial Procedures
As stated above, examination authorities in the AIC will examine the commercial bribery case and suggest in its examination opinion to transfer the case to judicial authorities if a criminal suspect is found.[47]
If individuals or entities commit a crime, administrative sanctions shall not replace the criminal punishment for the crime.[48]
c.Principle of “Judicial Procedure First”
If the bribery conducted by individuals or entities is found to have violated criminal laws during the investigation of an administrative institution, the investigation duty shall be transferred to judicial institutions immediately. Once the criminal investigation starts, the administrative procedure will be suspended pending the result of a criminal proceeding.
In addition, the same type of punishment shall not be rendered twice in a criminal judgment and administrative sanction decision for one illegal act. For example, if individuals or entities are fined by a criminal judgment, they will not be fined again by any ensuing administrative sanction for the same act.
(to be continued)
[1]Art. 166 of PSB Provisions refers to Provisions on the Procedures for Handling Criminal Cases by Public Security Organs (PSB Provisions) (Chinese:《公安机关办理刑事案件程序规定》).
[2]Art. 175 of PSB Provisions.
[3]Art. 177 of PSB Provisions.
[4]Art. 187 of PSB Provisions.
[5]Art. 189 of PSB Provisions.
[6]Art. 193 of PSB Provisions.
[7]Art. 205 of PSB Provisions.
[8]Art. 208 of PSB Provisions.
[9]Art. 217 of PSB Provisions.
[10]Art. 222 of PSB Provisions.
[11]Art. 231 of PSB Provisions.
[12]Art. 239 of PSB Provisions.
[13]Art. 249 of PSB Provisions.
[14]Art. 265 of PSB Provisions.
[15]Art. 77 of PSB Provisions.
[16]Art. 105 of PSB Provisions.
[17]Art. 120 of PSB Provisions.
[18]Art. 129 of PSB Provisions.
[19]Art. 144 and 145 of PSB Provisions.
[20]Art. 146 of PSB Provisions.
[21]Art. 279 of PSB Provisions.
[22]Art. 274 of PSB Provisions.
[23]Art. 171 of PRC Criminal Procedure Law.
[24]Art. 284 of PSB Provisions.
[25]Art. 183 of PSB Provisions.
[26]Art. 169 of PRC Criminal Procedure Law.
[27]Art. 172 of PRC Criminal Procedure Law.
[28]Art. 15 and Art. 173 of PRC Criminal Procedure Law.
[29]Art. 173 of Criminal Procedure Law.
[30]Art. 202 of Criminal Procedure Law.
[31]Art. 206 of Criminal Procedure Law.
[32]Art. 208 of Criminal Procedure Law.
[33]Art. 214 of Criminal Procedure Law.
[34]Art. 232 of PRC Criminal Procedure Law.
[35]Art. 16 of Provisions on the Procedures for Imposition of Administrative Punishments by the Administrative Authorities for Industry and Commerce Released by the State Administration for Industry and Commerce(Administrative Penalty Procedure)(Chinese: 《工商行政管理机关行政处罚程序规定》).
[36]Art. 17 of Administrative Penalty Procedure.
[37]Art. 20 of Administrative Penalty Procedure.
[38]Art. 21 of Administrative Penalty Procedure.
[39]Art. 23 of Administrative Penalty Procedure.
[40]Art. 45 of Administrative Penalty Procedure.
[41]Art. 50 of Administrative Penalty Procedure.
[42]Art. 54 of Administrative Penalty Procedure.
[43]Art. 22 of PRC Anti-Unfair Competition Law.
[44]Art. 71 of Administrative Penalty Procedure.
[45]Art. 29 of PRC Anti-Unfair Competition Law.
[46]Art. 37 of PRC Criminal Law.
[47]Art. 50(8) of Administrative Penalty Procedure.
[48]Art. 7 of PRC Administrative Punishment Law.