Proposed amendments to the Criminal Law give President Xi Jinping further powers in his fight against corruption in China. Once they are passed by the National People’s Congress, the new laws will provide further evidence of an ongoing policy shift in China towards an equal focus on both bribe recipients and those who make corrupt payments.
The draft Ninth Amendment to the Criminal Law of the People’s Republic of China (“Draft”), which was recently published for comment, contains a number of proposed amendments with respect to bribery offences. Key proposals include:
- New criminal offences: The Draft proposes new criminal penalties for those who pay bribes to the immediate relatives or other individuals closely connected to a government official with the aim of corruptly influencing that official and seeking improper benefits. The Draft also criminalises the giving of bribes to ex-government officials (or their immediate relatives or other people closely connected to them) in order to obtain improper benefits. The Criminal Law was amended in 2009 to include bribe recipients who were immediate relatives or had close relationships with officials and ex-officials. Under the Draft these categories of bribe-givers will be expanded to parallel those of bribe-recipients.
- Criminal fines for bribe givers: The Draft also proposes the imposition of criminal fines as an additional penalty for bribe-giving offences. Individual offenders and, in the case of corporate entities that commit bribery offences, certain individuals within the company responsible for the commission of the offences, would be implicated by this proposal. In addition to fines and imprisonment, the property of individuals who commit “serious” bribe-giving offences may also be confiscated. Under the existing Criminal Law, these individuals generally face imprisonment or criminal detention, unless, for some offences, the offence is especially serious or the value of the bribe involved is “huge”.
- Conditions on leniency for self-reporting: Under the Draft a bribe giver who self-reports before the commencement of a prosecution will only be eligible for a waiver of punishment in specific circumstances, for example where the offence was relatively minor or the accused has provided information to authorities leading to the “successful investigation of a major case”. The current Criminal Law provides that penalties against bribe givers can be waived (or mitigated) solely on the basis of self-reporting.
- Bar from engagement in related professions: The Draft proposes additional non-criminal penalties for individuals who commit crimes that violate their professional obligations or position. Individuals who are found guilty face a potential five year ban from professional activities in addition to criminal penalties. The Draft does not provide specific details but it would appear that this proposal is specifically designed to target commercial bribery in certain sectors, such as financial services.
- New sentencing criteria: New sentencing criteria for government officials found guilty of accepting bribes (and embezzlement) have been proposed which would see the existing monetary thresholds replaced with more flexible sentencing criteria. Under this proposal, the courts will have the power to take into account both the size and value of the bribe and other factors when sentencing government officials found guilty of accepting bribes. The current law has four levels of punishment, depending on whether the value of the bribe involved is “less than RMB 5,000”, “not less than RMB5,000 but less than RMB50,000”, “not less than RMB50,000 but less than RMB100,000”, or “not less than RMB100,000”. Under the Draft the sentencing criteria will be more general, and based on whether the offence involved i) a “relatively large” amount or “relatively serious” circumstances; ii) a “huge” amount or “serious” circumstances, or iii) an “especially huge” amount or “especially serious” circumstances.