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Establishing and Improving Criminal Legislation on Giving Bribes

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China’s Criminal Legislation on Embezzlement and Bribery

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Abstract

Embezzlement and bribery are major forms of crimes associated with corrupt conducts and practices. While the crime of embezzlement has been on the decline in the past years, the crime of bribery is still rampant and thus remains a priority in our anti-corruption effort today. In the Criminal Law of China, the crime of bribery includes giving and accepting bribes and acting as an intermediary in a case of bribery. A bribe given may not necessarily result in the crime of taking it, yet the crime of accepting bribes usually means there has been a bribe given. Thus, we must pay close attention to the crime of giving bribes, a major cause of accepting bribes, when trying to crack down on the latter crime.

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Notes

  1. 1.

    The crime of embezzlement under China’s Criminal Law is a kind of misappropriation and job-related crime. It involves the embezzlement of public properties, and objective evidence is easy to obtain and relatively strong, making it unnecessary to rely on testimony. In comparison, the crime of bribery is transaction-based and disguised, making it difficult to obtain objective physical evidence and more necessary to rely on testimony. Moreover, it is hard to make a final decision on such cases if there is no additional evidence to support the testimony. When accounting and auditing systems are fully in place to help prevent such crimes, it is easier to support a prosecution with evidences and it will therefore be easier for criminal legislation to effectively control the crime of embezzlement, yet this is not true for the crime of bribery. Someone counted the number of cases of embezzlement and bribery filed by procuratorates nationwide from 1988 to 2009 and found that more cases of the former were filed than the latter during 1988–2005 with a narrowing gap and the opposite was true in the later years with the declining trend in the number of embezzlement cases remaining evident (see Qian 2012). Another study revealed that the number of cases filed by procuratorates nationwide for the crimes of embezzlement and misappropriation kept decreasing during 2001–2010 and the number of cases of embezzlement filed by Changshu municipal procuratorate also decreased from 2000 to 2006; yet the number of cases of bribery grew continuously in both scenarios (Shan and Chen 2013). This echoes the previously mentioned conclusion that the crime of embezzlement is generally under control, but the crime of bribery, on the contrary, was only contained for short periods in the early and late 1990s and has then gone out of control since the 2000s.

  2. 2.

    According to cnki.net, a total of 270 papers were published on “accepting bribes” and 53 on bribery in 2010; 240 were published on the former and 76 on the latter in 2011; 181 on the former and 64 on the latter in 2012; 168 on the former and 81 on the latter in 2013.

  3. 3.

    Article 8 of the 1993 Anti-Unfair Competition Law stipulates that business operators must not offer bribes of properties or in other forms in order to sell or buy certain goods. Those who give rebates to the other party, whether it is an institution or individual, out of the account shall be held guilty of giving bribes; the other party, whether it is an institution or individual, who accepts rebates out of the account shall be held guilty of accepting bribes. A business operator who sells or buys certain goods may explicitly offer rebates to the other party or give commissions to intermediaries. Such rebates and commissions must be kept truthfully in the accounts of both the giver and the recipient.

  4. 4.

    The figure shows that in 2000, a total of 8,406 cases of accepting bribes and 1,200 cases of giving bribes were filed, involving 8,755 and 1,298 persons, respectively; 8,322 cases of accepting bribes and 1,686 cases of giving bribes were handled in 2001, involving 8,590 and 1,895 persons, respectively; the figures of 2002 were 8,576 cases of accepting bribes and 1,822 cases of giving bribes, involving 8,828 and 1,963 persons, respectively; in 2003, there were 8,457 cases of accepting bribes and 1,759 cases of giving bribes, involving 8,654 and 1,885 persons, respectively; in 2004, there were 8,511 cases of accepting bribes, involving 8,887 persons and 1,712 cases of giving bribes, involving 1,952 persons; in 2005, there were a total of 8,425 cases of accepting bribes, involving 8,811 persons and 1,688 cases of giving bribes, involving 1,994 persons; in 2006, there were 9,102 cases of accepting bribes, involving 9,531 persons, and 2,093 cases of giving bribes, involving 2,365 persons; in 2007, there were 9,371 cases of accepting bribes, involving 9,852 persons, and 2,346 cases of giving bribes, involving 2,691 persons; in 2008, there were 9,637 cases of accepting bribes, involving 10,216 persons, and 2,362 cases of giving bribes, involving 2,697 persons. These data came from the database of the Supreme People’s Court and the work report of the Supreme People’s Procuratorate. Also, according to the media report, during 2008–2012, the total number of those convicted of giving bribes was up by 60.4% over the five years before that and in 2013, the number of such offenders handled by procuratorates nationwide was 5,676, up by 17.3% over the previous year. However, despite such growth, the number of cases of giving bribes accounted for only 31.4% in the total bribery cases in 2013, showing that more attention is still paid to accepting bribes rather than giving bribes in spite of all the progress made over the years (see Supreme People’s Procuratorate 2013; Dai 2014).

  5. 5.

    The same special arrangements apply to the crime of introducing the opportunity of receiving bribes.

  6. 6.

    Zhao and Yu (2000).

  7. 7.

    The word “offender” is used in the article as it is neutral compared to “criminal” which contains dictatorial and negative implication (see Liu 2010).

  8. 8.

    Gao (2012).

  9. 9.

    According to the Rules of the Supreme People’s Procuratorate for People’s Procuratorates to Accept and File Cases (Trial) in 1999, cases involving taking a bribe above RMB 5,000 shall be filed; cases involving giving a bribe above RMB 10,000 shall be filed; and cases involving giving a bribe below RMB 10,000 shall also be filed in one of the following scenarios: (1) bribery for illegal gains; (2) bribery of more than three persons; (3) bribery of Party and government officials, judicial workers, or law enforcement workers; and (4) bribery leading to major loss of national or social interests.

  10. 10.

    Liu and Ruan (2003), Gao (2006), Yang (2008).

  11. 11.

    Zhu (2013).

  12. 12.

    Jiang (2003).

  13. 13.

    Fan and Zheng (2007).

  14. 14.

    Liu and Zhang (2010).

  15. 15.

    Yamaguchi (2011, p. 728).

  16. 16.

    Zhi (2009).

  17. 17.

    Huang (2012).

  18. 18.

    A widely accepted view is that in regard to the crime of bribery, “giving” means actual delivery and does not cover offering or promising (see Xiao 1994; Li 2004). As we see it, since the Criminal Law does not contain the exact word “actual,” to understand “giving” as “actual delivery” constitutes to some extent an unreasonable limitation to the coverage of the Criminal Law. In fact, it is completely fine to cover offering, promising and actual giving of bribes with just “giving” (Among the three, actual giving should be treated as an accomplished offence, while offering and promising can be regarded as an unaccomplished offence). However, since it has long been widely accepted to interpret giving as actual delivery, and there are only some general principles stated in the general provisions of the Criminal Law for unaccomplished offences, with no specific stipulations, leading to inadequate actual punishment for unaccomplished offences, I still suggest that we revise relevant stipulations.

  19. 19.

    The three stages of giving bribes may be described differently in different jurisdictions but they are the same in nature. “Offering to give” means approximately the same as “offering,” “promising to give” means the same as promising, and actual giving means the same as giving and delivering. These words are all simple and not likely to cause confusion. We will use them as appropriate in the following parts of this article.

  20. 20.

    Sun and Wei (2011).

  21. 21.

    Yamaguchi (2011), Otani (2008), Maeda (2000).

  22. 22.

    Lin (2012).

  23. 23.

    In the United Nations Convention against Corruption, the three parts of a bribery offence are not listed in the order of how an offence goes on. The Convention puts them in the order of “promising, offering and giving.” However, offering means to express the intention of giving a bribe, while promising is to reach an agreement with the other party. It is clear that offering comes before promising. Also, in contract law, offering also comes before promising. Therefore, to indicate the order of the three behaviors in the process of bribery and show the progressive severity of these three offences, we believe it is reasonable to put the three in the order of “offering, promising, and giving” when revising the Chinese Criminal Law in regard to bribery.

  24. 24.

    Jescheck and Weigend (1978).

  25. 25.

    Stefani (1998).

  26. 26.

    Beccalia (1993).

  27. 27.

    Qiu (1999).

  28. 28.

    Ye (2012).

  29. 29.

    A fine may or may not have a limit in amount, be a certain time of the amount involved in the committed crime, or base the amount on the number of days involved. Among these, fines that are a certain time of the amount involved in the crime is in proportion to a certain amount of money involved and they may be several times of the base amount or part of it (see Gao and Zhao 2008, pp. 318–322)

  30. 30.

    Ma (2009, pp. 440–442).

  31. 31.

    Li and Han (1998).

  32. 32.

    Li (2013).

  33. 33.

    Deng (2009).

  34. 34.

    Liu (2009).

  35. 35.

    Gao and Zhao (2008, pp. 388–389), Chen (2007).

  36. 36.

    Ma (2009, 442).

  37. 37.

    Gao and Zhao (2008, pp. 356–389).

  38. 38.

    Yu (2002).

  39. 39.

    Luan (2013).

  40. 40.

    Crimes Act of New Zealand (1961).

  41. 41.

    Criminal Code of Finland (2005).

  42. 42.

    Penal Code of Singapore (2006).

  43. 43.

    Swiss Criminal Code (2004).

  44. 44.

    Convention drawn up on the basis of Article K.3 (2) (c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union 1997 (Zhao et al. 2004).

  45. 45.

    Gao and Ma (2011).

  46. 46.

    Zhou (2012).

  47. 47.

    Criminal Law Office of the Law Committee of the Standing Committee of the National People’s Congress (2009).

  48. 48.

    Liang (2009).

  49. 49.

    The criminal category of accepting bribes also needs adjustments but this is out of the scope of this chapter.

  50. 50.

    Chu and Yan (2012).

  51. 51.

    Zhao (2009).

References

  • Beccalia C (1993) Dei Delitti E Delle Pene. Chinese edition: Beccalia C (1993) On crime and penalty (trans: Huang F). Encyclopedia of China Publishing House, Beijing, p 57

    Google Scholar 

  • Chen X (ed) (2007) On categories of criminal punishment, 2nd edn. China Renmin University Press, Beijing, pp 420–422

    Google Scholar 

  • Chu H, Yan Y (2012) Several difficult issues in the application of the crime of taking bribes by making use of influence. J Jiangsu Police Officer Coll 2012(1)

    Google Scholar 

  • Crimes Act of New Zealand (1961) Chinese edition (2007) (trans: Yu Z, Zhao S). China Fangzheng Press, Beijing, p 48

    Google Scholar 

  • Criminal Code of Finland (2005) Chinese edition (trans: Xiao Y, rev.: Lu J). Peking University Press, Beijing, pp 53–54

    Google Scholar 

  • Criminal Law Office of the Law Committee of the Standing Committee of the National People’s Congress (2009) Explanations and legislative grounds of the criminal of the People’s Republic of China and relevant provisions. Peking University Press, Beijing, p 795

    Google Scholar 

  • Dai J (2014) Procuratorates to crack down more heavily on bribe-giving. Procuratorate Daily, 25 Apr 2014, p 1

    Google Scholar 

  • Deng W (2009) On the structure of criminal punishment. Publishing House of China People’s Public Security University, Beijing, pp 304–305

    Google Scholar 

  • Fan Y, Zheng J (2007) The first in Zhejiang: counting prostitution fee as a bribe. Procuratorate Daily, 23 Jan

    Google Scholar 

  • Gao Y (2006) Why can’t we regard sexual bribery as a crime? Legal Forum (5)

    Google Scholar 

  • Gao M (2012) Birth and development of the criminal law of the People’s Republic of China. Peking University Press, Beijing, p 613

    Google Scholar 

  • Gao M, Ma K (eds) (2011) Criminal jurisprudence, 5th edn. Peking University Press and Higher Education Press, Beijing, pp 393–395, 629–636

    Google Scholar 

  • Gao M, Zhao B (2008) Comparative study on the general provisions of criminal punishment. Peking University Press, Beijing

    Google Scholar 

  • Huang X (2012) Clean governance: anti-embezzlement in Hong Kong. Guangming Daily Press, Beijing, pp 210–233

    Google Scholar 

  • Jescheck H-H, Weigend T (1978) Lehrbuch des Strafrechts. Duncker und Humblot, Berlin. Chinese edition: Jescheck H-H, Weigend T (2001) Textbook of German criminal law (trans: Xu J). China Legal Publishing House, Beijing, p 929

    Google Scholar 

  • Jiang H (2003) Who set this trick of prostitution? Prosecutorial View 2003(8)

    Google Scholar 

  • Li X (ed) (2004) Study on the crime of embezzlement and bribery. Intellectual Property Publishing House, Beijing

    Google Scholar 

  • Li C (2013) Studies on bribery offences. China University of Political Science and Law Press, Beijing, p 160

    Google Scholar 

  • Li K, Han Y (1998) Legal principles for criminal enforcement. China Renmin University Press, Beijing, p 192

    Google Scholar 

  • Liang W (2009) A study on classification of the crimes of bribery. West Law Rev 2009(3)

    Google Scholar 

  • Lin S (2012) On crimes in the criminal law (Part 2) (5th Revised edn.). Peking University Press, Beijing, pp 27–28

    Google Scholar 

  • Liu R (2009) Allow parades wherever possible, nurture rationality in citizens. Southern Weekly, 14 Sept

    Google Scholar 

  • Liu R (2010) From reforming criminal legislation to creating criminal law. Chin J Law 2010(1)

    Google Scholar 

  • Liu X, Ruan C (2003) It is unwise to regard sexual bribery as a crime. Rule Law Forum (2)

    Google Scholar 

  • Liu R, Zhang X (2010) United Nations convention against corruption and the coordination and improvement of criminal laws of China. In: Zhao B (ed) Implementation of United Nations conventions in the field of criminal law. Publishing House of China People’s Public Security University, Beijing, pp 698–699

    Google Scholar 

  • Luan D (2013) Who should suffer more, the briber or the taker? People’s Tribune 2013(28)

    Google Scholar 

  • Ma K (ed) (2009) Overview of foreign criminology (continental law system). China Renmin University Press, Beijing

    Google Scholar 

  • Maeda M (2000) Specific part of the Japanese criminal law (trans: Dong F). Wu-Nan Publishing Co., Ltd., Taipei

    Google Scholar 

  • Otani M (2008). Specific part of criminal law (new version 2) (trans: Li H). China Renmin University Press, Beijing

    Google Scholar 

  • Penal Code of Singapore (2006) Chinese edition (trans: Liu T, Ke L). Peking University Press, Beijing, p 153

    Google Scholar 

  • Qian X (2012) Study on the macroscopic effect of Chinese legislations on the crime of embezzlement and bribery. Jinan J (Philos Soc Sci) (6)

    Google Scholar 

  • Qiu X (1999) Review of penal rationality. China University of Political Science and Law Press, Beijing, p 471

    Google Scholar 

  • Shan M, Chen L (2013) Development trend and governance strategy for two types of embezzlement crimes in China amid accelerating transformation. In: Chen Z, Li S, Huang J (eds) Proceedings of the National Annual Criminal Law Conference 2013: Social Transformation and Criminal Law Adjustments in Contemporary China. Publishing House of China People’s Public Security University, Beijing

    Google Scholar 

  • Stefani G (1998) General provisions of the French criminal law (trans: Luo J). China University of Political Science and Law Press, Beijing, p 491

    Google Scholar 

  • Sun G, Wei C (2011) Study on international anti-embezzlement conventions and legislations on embezzlement. Law Press China, Beijing, p 431

    Google Scholar 

  • Supreme People’s Procuratorate (2013) Nearly 200,000 people involved in embezzlement cases over five years. Chongqing Economic Times, 23 Oct 2013, p 3

    Google Scholar 

  • Swiss Criminal Code (2004) Chinese edition (trans: Xu J, Zhuang J) (2004). China Fangzheng Press, Beijing, p 101

    Google Scholar 

  • Xiao Y (ed) (1994) Study on the crime of bribery. Law Press China, Beijing. Li X (ed) (2004) Study on the crime of embezzlement and bribery. Intellectual Property Publishing House, Beijing

    Google Scholar 

  • Yamaguchi A (2011) Criminal law: specific part, 2nd version (trans: Wang Z). China Renmin University Press, Beijing

    Google Scholar 

  • Yang X (2008) Three reasons for not regarding sexual bribery as a crime. Legal Daily, 14 Aug

    Google Scholar 

  • Ye R (2012) Application of and reflection on fine penalty. Ph.D. Dissertation, Southwestern University of Finance and Economics

    Google Scholar 

  • Yu Z (2002) Study on the criminal punishment annihilation system. Law Press China, pp 567–580

    Google Scholar 

  • Zhao B (2009) Outline of China’s criminal legislations on embezzlement. Jianghai Acad J 2009(1)

    Google Scholar 

  • Zhao B, Yu Z (2000) On the special arrangements for surrenders in the specific provisions of the criminal law of China. People’s Procuratorial Semimonthly 2000(3)

    Google Scholar 

  • Zhao B, Wang Z, Guo L (2004) United Nations convention against corruption and other important instruments. Publishing House of China People’s Public Security University, Beijing, pp 241–242

    Google Scholar 

  • Zhi Z (2009) Transaction of power and sex in a perspective of legal culture. Democracy Legal Syst 2009(17)

    Google Scholar 

  • Zhou D (2012) Thoughts on applying heavy punishment for the crime of bribe-giving. Master’s Dissertation, Southwest University of Political Science and Law, p 31

    Google Scholar 

  • Zhu L (2013) Regarding Sexual Bribery As A Criminal Offence: A study on the Liu Zhijun case. Zhejiang Legal News, 4 July

    Google Scholar 

Download references

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Authors and Affiliations

  1. Institute of Law, Chinese Academy of Social Sciences, Beijing, China

    Renwen Liu

  2. Law School, Tianjin University, Tianjin, China

    Yunbo Huang

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  1. Department of Criminal Law, Institute of Law, Chinese Academy of Social Sciences, Beijing, China

    Renwen Liu

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Liu, R., Huang, Y. (2019). Establishing and Improving Criminal Legislation on Giving Bribes. In: Liu, R. (eds) China’s Criminal Legislation on Embezzlement and Bribery. Research Series on the Chinese Dream and China’s Development Path. Springer, Singapore. https://doi.org/10.1007/978-981-32-9313-7_4

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