Under Articles 164, 385, 387, 389, 391 and 393 of the PRC Criminal Law, the offences of bribing another person or taking bribes are linked to the provision of “improper benefits”.
A person will be guilty of an offence if he gives payment in the form of tangible or intangible property with monetary value to “state personnel” for the purposes of receiving an “improper benefit” (Articles 389-391, PRC Criminal Law) (see below for definitions).
A person will be guilty of an offence if he is state personnel taking advantage of his position to solicit or accept a payment unlawfully in the form of “property” or an “unlawful kickback or processing fee” where the payment was given in exchange for an “improper benefit” (Article 385, PRC Criminal Law).
Property and improper benefits are not expressly defined. In the context of commercial bribery, property can be tangible or intangible property with monetary value, such as membership cards and pre-paid gift cards or coupons, entertainment and travel1. Improper benefits include any benefit not lawfully available or arranging for assistance, support or an advantage that is not consistent with applicable laws, regulations or industry standards. With respect to tendering and bidding, government procurement or other commercial activities, any bribe given that violates the principle of fairness and impartiality in order to seek a competitive advantage shall also be deemed an attempt to secure improper benefits2. State personnel refers to all personnel of state organs, including:
personnel engaged in public administration in state organs, such as government officials or the officials of the Chinese Communist Party (CCP)
personnel engaged in public service in state owned enterprises (SOEs), institutions and social organisations
personnel assigned by the government, SOEs or government-sponsored institutions to engage in public service in non-state owned corporations, enterprises, institutions and social organisations, and
other personnel engaged in public service according to the law (Article 93, PRC Criminal Law).
Under Article 164 of the PRC Criminal Law, there is also a separate offence of bribing a foreign public official. It is an offence for any person to give “property” to a “foreign public official” or an “official of an international public organisation” for the purpose of seeking an “improper commercial benefit”. Notably, differing from domestic bribery, the offence of bribing a foreign public official must involve a commercial benefit.
1. Opinions Regarding Issues Concerning the Application of Law in the Handling of Criminal Commercial Bribery Cases issued by the Supreme People’s Court and the Supreme People’s Procuratorate (“Opinions regarding Criminal Commercial Bribery Cases”) (effective 20 November 2008), Article 7.
2. Id, Article 9.