Overview
On April 18, 2016, the Supreme People’s Court and the Supreme People’s Procuratorate jointly promulgated Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Cases of Bribery and Corruption (Interpretations). The Interpretations became effective on April 18, 2016 and clarify the range of amounts for bribery and criminal fines under the PRC Criminal Law after its Ninth Amendment (Ninth Amendment). In this alert, we summarize some of the Interpretations’ key points.
The Return of Monetary Thresholds
The Ninth Amendment modified the standards applied to determine penalties for bribery of state functionaries, removing references to monetary amounts and replacing them with more general standards: “relatively large,” “huge,” and “especially huge.” However, the Interpretations bring back monetary thresholds, and provide details of the elements to be considered. Under the Interpretations, for a crime of bribery under Article 383 of the Criminal Law: (1) amounts larger than RMB 30,000 but smaller than RMB 200,000 constitute “relatively large;”(2) amounts larger than RMB 200,000 but smaller than RMB 3 million constitute “huge;” and (3) amounts larger than 3 million would constitute “especially huge.” Also the Interpretations list several circumstances as “other relatively serious circumstances” under Article 383, under which individuals could be sentenced under the three categories, even when the bribery amounts do not reach the respective thresholds.
Under the Interpretations, individuals who offer bribes to government officials to secure illegitimate benefits may be criminally liable under Article 390 of the Criminal Law if the bribery amount is larger than RMB 30,000. That said, individuals can be prosecuted if the amount is smaller than RMB 30,000 but larger than RMB 10,000 under six circumstances including: (1) when the bribery is provided to government officials with supervision and management responsibilities in key areas such as food, pharmaceuticals, production safety, environmental protection, and in connection with illegal activities; and (2) when the bribery is provided to judicial government officials in order to interfere with the judicial process. Furthermore, in relation to the crime of offering bribes under Article 390, offering bribes of amounts between RMB 1 million and 5 million constitutes “serious circumstances,” while offering bribes of amounts larger than RMB 5 million constitutes “especially serious circumstances,” both of which impact sentencing.
The thresholds for crimes of receiving or offering bribes to non-government officials under Articles 163 and 164 are comparatively higher than those in Articles 388 and 390. Amounts over RMB 60,000 are considered “relatively large” for the crime of offering bribes to non-government officials under Article 164, while amounts over RMB 2 million are considered “huge.”
The Definition of “Property and Money”
In relation to deciding criminal cases of corruption and bribery, “property and money” is defined to include currency, property, and proprietary interests. Special attention should be paid to proprietary interests, which include material interests that could be converted into currency, such as house decorations, discharge of debts, and other interests that require payment of currency, such as membership services and trips, etc. The amounts of “other interests” are calculated based on the amounts paid or that would have been paid.
Mitigating Circumstances and Intent
Mitigating circumstances for individuals offering bribes have been restricted under the Ninth Amendment, and the Interpretations shed some light on what “playing a critical role in detecting a major case” means in respect of mitigating circumstances under Article 390, by providing four qualifying circumstances: (1) providing clues to major cases that government agencies have not yet obtained; (2) providing clues which do not concern a major case, but which play a critical role in detecting a major case; (3) providing facts in relation to bribery, which play a critical role in evidence collection for major cases; and (4) providing facts in relation to bribery, which play a critical role in capturing fugitives and illegally acquired funds or property in connection with major cases. Notwithstanding these four circumstances, government officials are deemed to have the intention to receive bribes if they solicit and receive property and money by means of specific relationships, which they do not return or turn in after becoming aware of such behavior. In the press conference to announce the Interpretations, Pei Xianding, the Head of the SPC Criminal Adjudication Tribunal No.2, explained that “an individual with a specific relationship” refers to government officials’ close relatives, mistresses (lovers), and other individuals with common interests.
In addition, the Interpretations, consistent with the Ninth Amendment, restates that if an individual is convicted of bribery and sentenced to death but granted a reprieve, and if the sentence is reduced to life imprisonment, the individual cannot be paroled, or afforded a further reduction of his/her term of imprisonment.
Range of Monetary Fines
Another change to the Ninth Amendment is that mandatory fines have been added as penalties for crimes, although the amounts of fines are not specified. The Interpretations lay out the range of mandatory fines based on the length of sentencing. For individuals convicted of the crime of corruption or receiving bribes: (1) if they are sentenced to imprisonment of not more than three years or criminal detention, they will be fined more than RMB 100,000 but less than RMB 500,000; (2) if they are sentenced to imprisonment of not less than three years but not more than ten years, they will be fined more than RMB 200,000 but less than twice the amount of bribes, or confiscation of property; (3) if they are sentenced to imprisonment of not less than ten years or life imprisonment, they will be fined more than RMB 500,000 but less than twice of the amount of bribes, or confiscation of property. For individuals convicted under other crimes of corruption or bribery, which shall be concurrently sentenced to fine under the Criminal Law, the fine shall be more than RMB 100,000 but less than twice the relevant bribes.
The Interpretations provides detailed provisions on amounts and elements to be considered when prosecuting and deciding criminal cases involving corruption and bribery. It clarifies questions arising out of the Ninth Amendment and demonstrates that the Chinese government is continuing its battle against bribery and corruption.
