SPC, SPP interpretation on bribery crimes

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The "Supreme People’s Court and Supreme People’s Procuratorate's Interpretation on Several Issues Concerning the Specific Application of Law in hearing Criminal Bribery Cases" was passed by the 1547th session of the Adjudication Committee of the Supreme People’s Court on May 14, 2012, and by the 77th session of the 11th Procuratorial Committee of the Supreme People’s Procuratorate on August 21, 2012, and is hereby published and will take effect on January 1, 2013.

 

 

 

Supreme People's Court

Supreme People's Procuratorate

December 26, 2012

Legal Interpretation No. 22 (2012)

 

 

The Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Issues Regarding the Specific Application of Law in Handling Criminal Cases of Bribery

(Passed by the 1547th session of the Adjudication Committee of the Supreme People’s Court on May 14, 2012, and by the 77th session of the 11th Procuratorial Committee of the Supreme People’s Procuratorate on August 21, 2012)

The following interpretation of several issues relating to the specific application of law in criminal cases is based on the relevant provisions of the Criminal law so as to punish criminal acts of bribery in accordance with law:

Article 1: Those who pay bribes to state workers in an amount of 10,000 RMB or higher, seeking improper benefits, shall be pursued for criminal liability in accordance with the provisions of article 390 of the Criminal Law.

Article 2: In any of the following circumstances, bribery so as to gain improper benefits shall be found to have 'serious circumstances' as used in the first clause of Criminal Law article 390:

(1)the amount of the bribe is between 200,000 and 1 million RBM;

(2)In any of the following circumstances where the amount of the bribes is between 100,000 and 200,000:

1.bribes were offered to three or more people;

2. unlawful gains were used to make the bribe;

3. For the purpose of carrying out unlawful activity, bribes were made to state workers with supervisory or administrative responsibility for food, drugs, production safety, environmental protection etc., seriously damage to people's livelihood and the violating the safety of the public's lives and property;

4. Bribes were made to state workers at an administrative law enforcement organ or judicial organ, impacting administrative law enforcement and judicial fairness;

(3) Other situations where the circumstances are serious.

Article 3: Where bribes are offered seeking improper benefits and cause a direct economic loss of more than 1 million RMB, such circumstance shall be found to “cause a major loss to national interests” as provided in the first clause of Criminal Law article 390.

Article 4: In any of the following circumstances where bribes were made seeking improper benefits, it shall be found to be 'especially serious circumstance' as provided in the first clause of Criminal Law article 390:

(1)the amount of the bribe was more than 1 million RMB;

(2)In any of the following circumstances where the amount was between 500,000 and 1 million RMB:

1.bribes were offered to three or more people;

2. unlawful gains were used to make the bribe;

3. For the purpose of carrying out unlawful activity, bribes were made to state workers with supervisory or administrative responsibility for food, drugs, production safety, environmental protection etc., seriously damage to people's livelihood and the violating the safety of the public's lives and property;

4. Bribes were made to state workers at an administrative law enforcement organ or judicial organ, impacting administrative law enforcement and judicial fairness;

(3)the economic harm directly caused is 5 million RMB or more ;

(4)other situations where the circumstances are especially serious.

Article 5: Where multiple bribes have been made and not yet addressed, punish in accordance with the cumulative amount of the bribes.

Article 6: Where the conduct of a person making bribes to seek improper benefits constitutes a crime, the punishment for that offense should be combined with the punishment for bribery.

Article 7: Where a person making bribes confesses his acts of bribery before being prosecuted and in doing so exposes the bribery case, the provisions of Criminal Law article 68 regarding meritorious performance are not applied, and the the penalty may be commuted or waived provisions following the provisions of the second clause of Criminal Law article 390.

Where a work-unit makes bribes and , before being prosecuted, voluntary confesses the acts of bribery either by collective decision or by decision of the work-units responsible persons, the penalty of the work-unit and the responsible persons may be commuted or waived following the second clause of Criminal law article 390. Where a persons directly responsible for directly handling a work-unit's acts of bribery voluntarily confesses his knowledge of the work-unit's acts of bribery, prior to prosecution, the penalty against that responsible person may be commuted or waived in accordance with the second clause of Criminal Law article 390.

Article 8: Where a person making bribes truthfully confesses his acts of bribery after prosecution begins, the penalty may be mitigated in accordance with provisions of the second clause of Criminal Law article 67; where especially serious consequences are avoided due to his truthful confession, the penalty may be commuted.

Article 9: Where a person making bribes reports unrelated other criminal conduct of the person accepting the bribes, and it is checked and verified, commute or waive the penalty.

Article 10: In any of the following circumstances, the penalty for making bribes will generally not be suspended or waived.

(1) bribes were offered to three or more people;

(2)has previously received administrative or criminal penalties for bribery;

(3)bribes were made to carry out an unlawful criminal act;

(4)caused serious harmful consequences;

(5)Other situations where suspended sentences or waiver of penalty do not apply.

The restriction of the previous clause does not apply in situations as provided by the second clause of Criminal Law article 390.

Article 11: Any improper property interests acquired through bribery shall be recovered, ordered refunded, or returned to the victims, in accordance with article 64 of the Criminal Law.

Where bribery is used to acquire improper benefits other than property interests, including any operating license, qualifications, or promotion, it is suggested that the relevant departments handle it in accordance with the relevant provisions.

Article 12: "Seeking improper benefit" in a bribery offense indicates that the benefit sought by the person making bribes violates law, regulations, rules or policies, or that they requested a state worker violate laws, regulations ,rules, policies or industry standards for their own aid or convenience.

Violating principles of fairness and justices to gain a competitive advantage economic, organizational personnel management or other activity, shall be found to be 'seeking improper benefit"

Article 13: "Prior to prosecution [or before he is prosecuted]" as provided by the second clause of Criminal Law article 390, means prior to to the procuratorial organ filing a bribery case [internally].

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