Commercial bribery is the operator in order to exclude competitors for the purpose of trading opportunities for the fight, secretly given counterparty relevant personnel and personnel-related transactions can affect other acts of unfair competition to property or other benefits, is a form of bribery, but unlike other forms of bribery. Commercial bribery, Anti-Unfair Competition Law Article 8 against the operator shall not use property or other means of bribery to sell or buy goods. In unlisted units or individuals secretly giving kickbacks to bribe punished; other units or individuals in unlisted secret kickbacks, punished for taking bribes. The selling or buying of goods, may express clearly to the other discounts, you can commission to the middlemen. Operators give discount commission to the middlemen must truthfully account. Accepted discounts, commissions operators must truthfully stated.
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Mainly commercial bribery
First, accepting cash payments or bribery; Second, payment or acceptance of a variety of cost (promotional fees, sponsorship fees, advertising fees, labor, etc.), envelopes, gifts and other bribes; Third, there is price paid or received securities (including bonds, stocks, etc.); Fourth, or accepting payment in kind (including a variety of high-end household goods, luxury goods, crafts, collectibles, as well as houses, vehicles and other commodities); five are other forms of payment or receipt ( such as debt relief, to provide security, free entertainment, travel, study and other property interests and education, honors, special treatment and other non-property interests); six are giving or receiving kickbacks; seven is not truly giving or receiving commissions accounted for under the guise of commission in the name of commercial bribery.
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Commercial bribery offenses
Commercial bribery in the case constitutes a crime, criminal law applies. Criminal Law Amendment (f) Clause 163 provides: company, enterprise or other unit staff taking advantage of his position to obtain other people's property or illegally accepting other people's property, seek benefits for others, the larger the amount, at 5 years imprisonment or criminal detention; huge amount of at least 5 years imprisonment, confiscation of property. Company, enterprise or other unit staff in economic activities, taking advantage of his position, in violation of state regulations by accepting a variety of rebates, fees, owned by individuals, in accordance with the provisions of the preceding paragraph punishment. Section 164 provides that: to seek illegitimate interests, companies, enterprises or other units of staff to the property, a relatively large amount, at 3 years of imprisonment or criminal detention; huge amount, more than 10 years at 3 years term imprisonment and fined.
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Behavior points
Body (1) behavior is the operator and who instigated by operators (including its employees); Other subjects may constitute bribery, but not commercial bribery. Objective (2) behavior is trading opportunities for the market rather than for other purposes. (3) there is secretly in private property and other benefits given to other people's behavior, and to a certain amount. (4) the conduct constituting the bribery and bribery in two ways.
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Characteristics of commercial bribery
(1) is the main operator, gambling bribe other units or individuals. As operators of commercial bribery is not limited to the main body, in addition to legal, but also include other organizations and individuals. Legal is not limited to corporate entities, engaged in business activities also include legal institutions, corporate social groups. (2) The purpose is for the sale of goods or the purchase of goods, namely commercial purposes, by means of bribery to obtain superior competitive position of other operators. (3) means there are two categories, namely property and other tools. Of course, commercial bribery and other corruption are all areas of bribery, breach of the criminal law should be given criminal sanctions, but on the administrative responsibilities are different, commercial bribery by the industrial and commercial administrative organs in accordance with (the Anti-Unfair Competition Law) impose administrative penalties, Other bribe to by party and government discipline. Commercial bribery bribery are motivated by commercial gain, it is with the development of commodity economy to produce, spread a negative economic phenomenon. According to "The United Nations Convention against Corruption", it is a kind of corruption, harm to China's socialist system performance: 1. Resulting in unfair competition between operators, undermining the order of fair competition, it makes the market competition becomes a vicious game of bribery, favors and relationship network. 2. Resulting in artificially high prices, especially some pharmaceutical companies to implement high-priced, high rebates, increased the burden on the country and the masses. 3. Severely damaged social morality and professional atmosphere. 4. Through commercial bribery, counterfeiting of goods into the market, so selling counterfeit and shoddy goods criminal activities taking advantage of consumers suffer. 5. Hinder the effectiveness of competition means to play the role of quality, price, technology, services, and market allocation of resources failure of the socialist market economy is difficult to achieve some of its present value. 6. Operators bribe false false accounts for the cost of accepting bribes units or individuals are not recorded or withheld income tax deductibility of the former, the latter do not pay taxes, resulting in a huge loss of state and local taxes. 7. National staff accepting bribes, followed by security officials or promotion bribery, serious damage to the national institution building honest. 8. Those who accepted bribes secretly betrayed the interests of the unit, causing difficulties in the management of enterprises, enterprises severely damaged the internal management system. 9. Damage the international image of our country, the international rating agencies impression of the extent of corruption in our country. 10. Commercial bribery to increase the wealth gap, some people flourishes, more people suffer unjustly marginalized because of reduced revenues in the competitive market, so that the poor increased. 11. Commercial bribery money laundering and organized crime breeding, which caused social discontent will exacerbate social conflict, resulting in a series of social unrest and rising crime rates. Commercial bribery caught in a vicious cycle of flooding will make the country's rising crime rate. 12. Impede transformation of government functions, resulting in unfair competition in commercial bribery, criminal market turmoil and make government regulation powerless, government intervention in the market had to strengthen the market economy requires the transformation of government functions elusive goal. 13. Commercial bribery leading to effective public expenditure is weakened or compromised. 14. Caused by the prevalence of commercial bribery and collusion clique fact impede law decree, induce local and departmental protectionism intensified social conflicts, building a socialist harmonious society hamper. Overall, commercial bribery in the market economy and the national integrity system a hundred more harm than good, not the lubricant of economic development. It is no exaggeration to say that will make the market economy caught in commercial bribery destroy the moral corruption of society, social development fall astray, radical commercial bribery is a necessary requirement of the anti-corruption struggle.
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"Interim Provisions on the Prohibition of Commercial Bribery"
The first is to stop commercial bribery, maintain fair competition order, according to the relevant provisions of the "People's Republic of China Anti-Unfair Competition Law" (hereinafter referred to as the "Anti-Unfair Competition Law"), the enactment of this provision. The second operator shall not violate "Anti-Unfair Competition Law" Article VIII, using commercial bribery sell or buy goods. The term commercial bribery, is the operator for the sale or purchase of goods and the use of property or other means to bribe other entity or individual behavior. The aforesaid property, refers to cash and in kind, including operators for the sale or purchase of goods on behalf of, under the guise of promotional fees, promotional fees, sponsorship fees, research costs, labor costs, consulting fees, commissions, etc., or to reimburse various expenses way, benefit other units or their personal belongings. Other methods mentioned in Paragraph 2 refers to the means to provide other benefits on behalf of various domestic and international travel, study and other belongings other than payment. Article operators workers using commercial bribery for selling or purchasing goods for the operator, should be recognized as the operator's behavior. Article no unit or individual may accept or extort bribes in the sale or purchase of goods. Article in off-balance units or individuals secretly giving kickbacks to bribe punished; other units or individuals in the off-balance secret kickbacks, punished for taking bribes. The term rebate means the selling of goods in off-balance when secretly in cash, implement or otherwise give back to other units or individuals of a certain percentage of the product price. The term off-balance covert means established by law is not reflected on their production and business activities, or administrative funding for the balance of payments financial account in accordance with the financial accounting system with clear factual account, including not recorded in the financial account, transferred to other financial Account or false accounting and so on. Article VI of the selling of goods, may expressly giving discounts. Operators giving discounts must be truthfully recorded; operators or other entities to receive the discount, you must factually. The term discounts, that none of the purchase and sale of goods, is the operator at the time of sale of goods, in order to express and factually way to give each other's price, according to a certain percentage of the total price to be charged, including immediate payment of the price and The total price paid will be refunded after the two forms by a certain percentage. The term explicit and recorded, according to the contract refers to the amount and method of payment, in accordance with the law on the establishment of the financial accounts of its production and business activities, or administrative expenses factual account of the balance of payments in accordance with a clear financial accounting system. Article VII of the selling or buying of goods, may expressly commission to the middlemen. Operators commission to the middlemen must truthfully recorded; middleman to accept the commission, must be accurately accounted for. The term of commission means giving operators to provide services labor remuneration has qualified intermediary legitimate business transactions in the market. Article VIII of the operators in the commodity trading may not bundled cash or goods to other units or their personal. But according to the Small Business Practices Get your gift is excluded. Violation of the preceding paragraph, as a commercial bribery. Violation of the provisions of Article IX operators to bribery sell or purchase goods, industrial and commercial administrative organs in accordance with the provisions of "Anti-Unfair Competition Law" Article 22, according to the circumstances imposed ten thousand yuan more than 200,000 yuan fines, illegal income shall be confiscated; constitutes a crime, be held criminally responsible transfer of the judiciary. Bribes when relevant units or individuals to buy or sell goods, industrial and commercial administrative authorities punished in accordance with the provisions of the preceding paragraph; constitute a crime, transferred to judicial organs be held criminally responsible. Article 10 Commercial bribery by the industrial and commercial administrative authorities above the county level of supervision and inspection. Industrial and commercial administrative organs in the supervision and inspection of commercial bribery, bribery can be together and bribery investigation. Article 11 An operator in the sale or purchase of goods in bribery, while the other acts in violation of the industrial and commercial administrative regulations on bribery and other illegal acts should be punished. Article 12 The provisions of the date of promulgation.
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"Interim Provisions on the Prohibition of Commercial Bribery"
The first is to stop commercial bribery, maintain fair competition order, according to the relevant provisions of the "People's Republic of China Anti-Unfair Competition Law" (hereinafter referred to as the "Anti-Unfair Competition Law"), the enactment of this provision. The second operator shall not violate "Anti-Unfair Competition Law" Article VIII, using commercial bribery sell or buy goods. The term commercial bribery, is the operator for the sale or purchase of goods and the use of property or other means to bribe other entity or individual behavior. The aforesaid property, refers to cash and in kind, including operators for the sale or purchase of goods on behalf of, under the guise of promotional fees, promotional fees, sponsorship fees, research costs, labor costs, consulting fees, commissions, etc., or to reimburse various expenses way, benefit other units or their personal belongings. Other methods mentioned in Paragraph 2 refers to the means to provide other benefits on behalf of various domestic and international travel, study and other belongings other than payment. Article operators workers using commercial bribery for selling or purchasing goods for the operator, should be recognized as the operator's behavior. Article no unit or individual may accept or extort bribes in the sale or purchase of goods. Article in off-balance units or individuals secretly giving kickbacks to bribe punished; other units or individuals in the off-balance secret kickbacks, punished for taking bribes. The term rebate means the selling of goods in off-balance when secretly in cash, implement or otherwise give back to other units or individuals of a certain percentage of the product price. The term off-balance covert means established by law is not reflected on their production and business activities, or administrative funding for the balance of payments financial account in accordance with the financial accounting system with clear factual account, including not recorded in the financial account, transferred to other financial Account or false accounting and so on. Article VI of the selling of goods, may expressly giving discounts. Operators giving discounts must be truthfully recorded; operators or other entities to receive the discount, you must factually. The term discounts, that none of the purchase and sale of goods, is the operator at the time of sale of goods, in order to express and factually way to give each other's price, according to a certain percentage of the total price to be charged, including immediate payment of the price and The total price paid will be refunded after the two forms by a certain percentage. The term explicit and recorded, according to the contract refers to the amount and method of payment, in accordance with the law on the establishment of the financial accounts of its production and business activities, or administrative expenses factual account of the balance of payments in accordance with a clear financial accounting system. Article VII of the selling or buying of goods, may expressly commission to the middlemen. Operators commission to the middlemen must truthfully recorded; middleman to accept the commission, must be accurately accounted for. The term of commission means giving operators to provide services labor remuneration has qualified intermediary legitimate business transactions in the market. Article VIII of the operators in the commodity trading may not bundled cash or goods to other units or their personal. But according to the Small Business Practices Get your gift is excluded. Violation of the preceding paragraph, as a commercial bribery. Violation of the provisions of Article IX operators to bribery sell or purchase goods, industrial and commercial administrative organs in accordance with the provisions of "Anti-Unfair Competition Law" Article 22, according to the circumstances imposed ten thousand yuan more than 200,000 yuan fines, illegal income shall be confiscated; constitutes a crime, be held criminally responsible transfer of the judiciary. Bribes when relevant units or individuals to buy or sell goods, industrial and commercial administrative authorities punished in accordance with the provisions of the preceding paragraph; constitute a crime, transferred to judicial organs be held criminally responsible. Article 10 Commercial bribery by the industrial and commercial administrative authorities above the county level of supervision and inspection. Industrial and commercial administrative organs in the supervision and inspection of commercial bribery, bribery can be together and bribery investigation. Article 11 An operator in the sale or purchase of goods in bribery, while the other acts in violation of the industrial and commercial administrative regulations on bribery and other illegal acts should be punished. Article 12 The provisions of the date of promulgation. 6. "Commercial bribery handling criminal cases concerning the Application of Laws of opinion" (the Supreme People's Procuratorate, November 20, 2008 issued) To punish commercial bribery, according to the relevant provisions of the Criminal Code, combined with handling the actual work, is now on a number of issues handled criminal cases of commercial bribery applicable law, made the following comments: First, commercial bribery involving the following eight counts of criminal law: (1) non-national staff of bribery (Article 163); (2) of the non-national staff of bribery (the provisions of Article six fourteen); (3) of bribery (Article 385 of the Criminal Code); (4) units of bribery (Criminal Law Article 187); (5) bribery (Penal three hundred and eightieth nine); (6) for the bribery offense (Penal Code Article 391); (7) introduction of bribery (Article 392 Penal Code); (8) units of bribery (Criminal Law Article ninety-three). Second, the provisions of Article 163, "other units" provisions of Article 164, including both institutions, social organizations, village committees, neighborhood committees, village groups, such as a permanent organization, but also for the organize sports events, theatrical performances or other legitimate activities of established organizations located very Organizing Committee of the Preparatory Committee, project contracting teams. Third, the provisions of Article 163, "the company, enterprise or other unit staff," the provisions of Article 164, including the state-owned companies, enterprises and other non-national staff of state-owned units. Fourth, the national staff of medical institutions, in pharmaceuticals, medical devices, pharmaceutical products and other medical materials procurement activities, taking advantage of his position to obtain the property seller or sellers of property illegally accepting, for the seller to reap benefits constitutes a crime, according to the provisions of Article 385 of the Criminal Code, convicted and punished for taking bribes. Non-national staff of medical institutions, with the conduct of a larger amount, in accordance with the provisions of Article 163, the non-national staff of bribery convicted and punished. Medical institutions in the medical staff, the use of prescription of his office, under various names and illegally accepting drugs, medical devices, pharmaceutical products, medical materials and other property seller, the seller of pharmaceutical products to seek benefits, the larger the amount, in accordance with the Criminal Law provisions of Article 163, the non-national staff of bribery convicted and punished. Five national staff in schools and other educational institutions, in textbooks, teaching aids, school uniforms or other items such as procurement activities, taking advantage of his position to obtain the property seller or sellers of property illegally accepting, for the seller to reap interests, constitutes a crime, according to the provisions of Article 385 of the Criminal Code, convicted and punished for taking bribes. Schools and other educational institutions in the non-national staff, with the conduct of a larger amount, in accordance with the provisions of Article 163, the non-national staff of bribery convicted and punished. Positions in schools and other educational institutions teachers use teaching activities facilitate various names illegally accepting materials, teaching aids, school uniforms or other items the seller of property for textbooks, teaching aids, school uniforms or other items the seller to seek benefits, compared with the amount large, in accordance with the provisions of Article 163, the non-national staff of bribery convicted and punished. Six, evaluation or procurement activities bid evaluation committee established by law, the negotiating team competitive negotiation procurement, procurement inquiry member of the inquiry team, in the bidding and government procurement matters, and to obtain other people's property or illegally accepts others property, for the benefit of others, the larger the amount, in accordance with the provisions of Article 163, the non-national staff of bribery convicted and punished. Bid Evaluation Committee established by law, the negotiating team competitive negotiation procurement, procurement inquiry inquiry team in the country on behalf of other state agencies or units with the conduct of, in accordance with the provisions of Article 385 of the Penal Code, in order to bribery convicted and punished. Seven, commercial bribery in the property, including both monetary and in-kind, but also can be used to calculate the monetary amount of property interests, such as providing home improvements, containing the amount of membership cards, token cards (vouchers), travel expenses. Specific amount actually paid to the tariff shall prevail. Eight, accepting bank cards, regardless of whether the person actually taken bribes or consumption, deposit amount on the card should generally be regarded as the full amount of bribes. Use of bank card overdrafts, if borne by the party giving the bank card repayment obligation, overdraft amount should also be recognized as bribery amount. Nine in bribery crime, "seek illegitimate interests" refers to people seeking bribes in violation of laws, rules, regulations or policies of interests, or ask for violation of laws, regulations, rules, policies, regulations or industry standards help convenient conditions. In the bidding process, government procurement and other commercial activities contrary to the principle of fairness, give relevant personnel belongings to seek a competitive advantage, are "to seek illegitimate interests." Ten, for commercial bribery cases, to distinguish the boundaries of bribery and gifts. The following factors should be combined with major comprehensive analysis, comprehensive judgment: (1) the occurrence of property transactions in the background, such as the case of both the existence and extent of family relations and the history of exchanges; Value (2) exchanges of property; (3) the reason property dealings the timing and manner of providing the trust property party to accept the presence or absence of duties on the parties; (4) whether the recipient advantage of his position to seek benefits for providers. XI, non-national staff and national staff conspires common accepting other people's property, constitute a common crime, based on the specific circumstances of his position to facilitate the use of both convictions were held criminally responsible: (1) the use of his position to facilitate national staff for the benefit of others, and be held criminally responsible for taking bribes. (2) use of his office to seek non-national staff benefits to non-national staff of bribery be held criminally responsible for others. (3) were using their positions to facilitate seek benefits, according to the criminal nature of the principal criminal prosecution of others, can not distinguish between the main accomplice, can be held criminally responsible for accepting bribes. Head of commercial bribery cases: "People's Republic of China Anti-Unfair Competition Law" Article 22 provides for the jurisdiction to make commercial bribery cases, the operator uses the property or other means of bribery to sell or purchase goods, which constitutes a crime, be held criminally responsible; does not constitute a crime , supervision and inspection department may impose a fine of 200,000 yuan yuan, according to circumstances, the illegal income confiscated. According to the Supreme People's Procuratorate, Ministry of Public Security "on economic crimes prosecution provisions of the standard" commercial bribery payments personal bribe of 1 million square above, the unit amount of 20 million yuan of bribery and should be prosecuted; commercial bribe receiving Party If accepting bribes owned by individuals, the amount of more than $ 5,000 should be prosecuted. Cases reach this standard in cases involving national staff headed by the People's Procuratorate, the public security organs in charge does not involve national staff. Economic crimes prosecution does not meet the standards of commercial bribery cases, according to the "People's Republic of China Against Unfair Law Article" Section 3, the people's governments at various levels shall take measures to stop acts of unfair competition, and create a good environment for fair competition and conditions. People's governments above the county level administrative department for supervision and inspection of acts of unfair competition; laws and administrative regulations, supervision by other departments, in accordance with its provisions.
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Economic Encyclopedia
Commercial bribery The essential characteristics of commercial bribery is the operator in order to obtain favorable trading opportunities or trading conditions and adopt various means to unlisted secret to the relevant units or individuals benefit. In accordance with the spirit of the central current deployment, the special treatment is generalized action against commercial bribery, bribery may include commercial activities associated with all aspects, including the use of administrative powers of national staff accepting bribes. The State Administration for Industry in 1996 promulgated the "Provisional Regulations on the Prohibition of Commercial Bribery" will be defined as operators of commercial bribery to other units or individuals bribery, which is a narrow generalization. Commercial bribery, generalized concept more appropriate. Each unit is responsible for better co-ordination, and achieved success in the broader context of governance, in particular, can make the national staff of bribery in commercial activities has been improvement, seize the focus of special action to achieve the effect is very important. Of course, the best by a range of commercial bribery laws and regulations more clearly, be more specific provisions of the law enforcement agencies go investigators. Commercial bribery in the case constitutes a crime, criminal law applies. China's criminal law does not% 26ldquo; commercial bribery% 26rdquo; this accusation, but for the national staff of bribery in commercial activities, the criminal law has% 26ldquo; bribery% 26rdquo;,% 26ldquo; taking bribes% 26rdquo;, % 26ldquo; introduce bribery% 26rdquo;; For companies, enterprises, non-national staff, provides for% 26ldquo; companies, corporate officers taking bribes% 26rdquo; and% 26ldquo; company, corporate officers bribery% 26rdquo;. Less serious acts, does not constitute commercial bribery crime, punished by the industrial and commercial administration and other organs.
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