China: 2013 Guidance On PRC Anti-Bribery Law Focuses On Bribe Givers

Last Updated: 30 January 2013
Article by Palmina M. Fava, Ananda Martin and Henry Li

Anti-corruption enforcement efforts in China historically have tended to focus on the recipients of bribery, as evidenced by harsher statutory penalties for bribe takers and the highly publicized prosecution of government officials accused of accepting illicit payments. However, recently issued guidance on PRC anti-bribery law places the focus squarely on bribe givers by expanding upon existing sentencing thresholds and creating new incentives for voluntary disclosure. Whether or not to bring potential violations of anti-bribery law to the attention of regulators is a complex decision in any jurisdiction. For foreign companies operating in China, the new guidance will serve as an important factor in that calculus.

The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate of Several Issues Concerning the Specific Application of the Law in the Handling of Criminal Bribe-Giving Cases (最高人民法院、最高人民检察院关于办理行贿刑事案件具体应用法律若干问题的解释) (the "Interpretation")1 came into force on January 1, 2013. Adopted by China's highest court, the Supreme People's Court ("SPC"), on May 14, 2012, and its highest prosecutorial organ, the Supreme People's Procuratorate ("SPP"), on August 21, 2012, the Interpretation is equivalent to law. On multiple occasions, the SPC and the SPP have jointly issued guidance regarding bribery-related crimes, such as the 2007 interpretation on the receipt of bribes by State Personnel (defined below), and the 2008 interpretation on commercial bribery. These documents provide significant insight into how Chinese regulators interpret key principles of anti-bribery laws. Provisions of note in the Interpretation include the following.

Mitigated Sentences and Waivers for Voluntary Confessions

Pursuant to Article 7 of the Interpretation, if an individual or corporate entity accused of bribery voluntarily confesses to the authorities before prosecution commences, he may be eligible for mitigated punishment or a waiver of punishment (subject to certain exceptions2). According to Article 8, post-prosecution, an individual or entity convicted of bribery may still be eligible for leniency in sentencing if he or it truthfully confesses to the criminal conduct.

For the first time, the Interpretation expressly applies the concept of voluntary confession to corporate bribe givers. Voluntary confession (自首) is defined under the PRC Criminal Law as the act of voluntarily delivering oneself up to justice and truthfully confessing one's crime after its commission.3 Voluntary confession by an individual is a common concept under the PRC Criminal Law. Voluntary confession by a corporate perpetrator, however, is a comparatively new concept. First introduced in a 2002 judicial interpretation on smuggling,4 it was subsequently extended to crimes committed in the course of performing an official duty (including acceptance of bribes) in 2009.5

Under PRC law, if a corporate entity is convicted of paying a bribe, it will be subject to criminal fines. In addition, individuals in positions of corporate authority (such as the legal representative or general manager), as well as the perpetrators themselves, may be subject to criminal detention or imprisonment, depending on the severity of the crime. While examples of company representatives receiving leniency after voluntarily confessing are publicly available,6 the Interpretation marks the first time that this practice has been codified.7

Both the U.S. Department of Justice ("DOJ") and the Securities and Exchange Commission ("SEC") highly encourage voluntary disclosures. The FCPA8 Guidance released last November expressly states that "both DOJ and SEC place a high premium on self-reporting, along with cooperation and remedial efforts, in determining the appropriate resolution of FCPA matters." In addition, the U.S. Federal Sentencing Guidelines, which place sentencing limits on federal felonies and serious misdemeanors, take into account an organization's self-reporting, cooperation and acceptance of responsibility.9 Accordingly, in the U.S. as in China, while voluntary disclosure is no guarantee of non-prosecution, it can serve as a significant mitigating factor.

The Scope of "Improper Benefits" Expanded

The 2008 judicial interpretation on commercial bribery defines bribery as seeking "improper benefits" (不正当利益). Improper benefits accrue where a bribe giver seeks "benefits in violation of laws, regulations, rules or policies, or requests that a receiving party provide any assistance or convenience in violation of laws, regulations, rules or policies, or industry standards" such as "a competitive advantage in tendering, government procurement and other commercial activities."10 The Interpretation begins with the same core definition but expands its scope to further include "seeking competitive advantage in economic, organizational, human resource, administrative and other activities in violation of the principles of justice and fairness."11 On its face, this modification has the potential to significantly increase the scope of illegal activity. However, whether PRC officials will seize upon this change to bring cases that previously would have fallen outside their enforcement mandate remains to be seen. In addition, as the Interpretation specifically deals with the crime of bribing "State Personnel" (国家工作人员)12 – a category that overlaps but is not contiguous with the notion of "foreign official" in the FCPA – it is unclear whether this change also applies to acts of commercial bribery.

Monetary Thresholds and Penalties

The Interpretation adopts the PRC Criminal Law's threshold of RMB10,000 for individual bribes to State Personnel as the floor for criminal liability.13 It proceeds to clarify what range of payments constitutes a "serious case" (情节严重),14 "very serious case" (情节特别严重)15 and a "major loss to the national interest" (使国家利益遭受重大损失), 16 as well as the penalties associated with each.

A "serious case," which carries a penalty of imprisonment for five to ten years, applies where the amount of the bribe falls between RMB200,000 and RMB1 million or where the amount of the bribe is between RMB100,000 and RMB200,000 and any of the following aggravating factors applies:

  1. the bribe is offered to more than three persons;
  2. the bribe comes from illegal proceeds;
  3. the bribe is offered to State Personnel with administrative oversight for food, drugs, production safety, or environmental protection and harms the public interest or endangers people's lives and property; or
  4. the bribe is offered to State Personnel at enforcement or judicial organs where the bribe affects administrative enforcement or judicial impartiality.

There is also a blanket provision for bribes paid under "other serious circumstances." From factor (3) above, it is apparent that official corruption related to food items, pharmaceuticals and product safety represents a significant enforcement priority. This is not surprising given the number of recent high-profile cases (in particular, the outcry over tainted infant milk formula) drawing public ire.

A "very serious case," which carries a penalty of more than ten years' imprisonment or a life sentence, as well as the possible confiscation of personal property, applies to matters where (i) the amount involved is more than RMB1 million; (ii) the amount involved is between RMB500,000 and RMB1 million and is accompanied by one of the above aggravating factors; (iii) the bribe causes a direct economic loss of more than RMB5 million or (iv) in "other very serious circumstances."

In contrast, a "major loss to the national interest" (which, like "serious cases," carries a penalty of imprisonment for five to ten years) is contingent solely upon the extent of economic loss caused by the bribery rather than the amount of the bribe itself. Such threshold is set at an economic loss of more than RMB1 million.

Although the Interpretation clarifies the penalties associated with different levels of official corruption, whether these rules will be applied to commercial bribery cases remains to be seen. Also unclear is whether the thresholds, which technically apply only to bribes paid by individuals, will influence cases against corporate perpetrators.17

Significance for Foreign Companies Operating in China

While the enhanced sentencing thresholds are likely to have little impact on the daily operations of foreign companies in China, the prospect of a reduced sentence in exchange for voluntary disclosure is noteworthy. Although technically speaking, corporate entities have no affirmative duty under PRC law to disclose knowledge of bribery, the guidance offered by the Interpretation should influence how corporate representatives of multinationals weigh their options in determining when and whether to proactively disclose compliance issues to regulators.

Further, while the guidance primarily clarifies, rather than changes, existing regulations, it serves as an important tool for assessing China's current enforcement priorities – something all foreign companies operating in this rapidly evolving market would do well to keep in mind. While PRC enforcement organs are likely to continue focusing their efforts on corruption among party members and State Personnel, the Interpretation's attention to criminal penalties for bribe givers indicates an increased interest in the other side of the graft equation. It is also worth noting that foreign companies play a major role in many of the sectors singled out in the sentencing guidelines for special consideration, such as the food and pharmaceutical industries. So long as U.S. regulators continue to bring actions involving Chinese entities, it would not be surprising if their PRC counterparts seized the opportunity to return the favor.

Bribe Giving: Thresholds and Penalties

The following chart summarizes the various thresholds and applicable penalties for bribes given to State Personnel by individuals as set forth in the Interpretation and Article 390 of the PRC Criminal Law.

Bribery of State Personnel




Aggravating Factors

  1. RMB10,000 or more; or
  2. less than RMB10,000 and any of the aggravating factors applies18


up to five years imprisonment or criminal detention

the bribe:

  1. is provided in order to obtain illegal benefits;
  2. is provided to more than three persons;
  3. is offered to State Personnel at party organs, administrative enforcement agencies or judicial departments; or
  4. has caused significant losses to the interest of the state or society
  1. greater than RMB200,000 but less than RMB1 million;
  2. between RMB100,000 and RMB200,000 and any of the aggravating factors applies; or
  3. other "serious circumstances" apply19

"serious case"

five to ten years imprisonment

the bribe:

  1. is offered to more than three persons;
  2. comes from illegal proceeds;
  3. is offered to State Personnel with administrative oversight for food, drugs, production safety, or environmental protection and harms the public interest or endangers people's lives and property; or
  4. is offered to State Personnel at enforcement or judicial organs where the bribe affects administrative enforcement or judicial impartiality
  1. greater than RMB1 million;
  2. between RMB500,000 and RMB1 million and any of the aggravating factors applies;
  3. a direct economic loss of RMB5 million occurs; or
  4. other "very serious circumstances" apply20

"very serious case"

imprisonment of more than ten years or life sentence, plus confiscation of personal property

the bribe:

  1. is offered to more than three persons;
  2. comes from illegal proceeds;
  3. is offered to State Personnel with administrative oversight for food, drugs, production safety, or environmental protection and harms the public interest or endangers people's lives and property; or
  4. is offered to State Personnel at enforcement or judicial organs where the bribe affects administrative enforcement or judicial impartiality

direct economic loss greater than RMB1 million21

"major loss to the national interest"

five to ten years imprisonment



1 Available at

2 Mitigation is generally unavailable if:

  1. the bribe giver provided bribes to more than three persons;
  2. the bribe giver was previously subject to an administrative or criminal penalty for bribery;
  3. the bribes were provided in order to carry out criminal or illegal activities;
  4. the bribery resulted in "severe consequences"; or
  5. certain other circumstances apply. Interpretation, Art. 10.

3 PRC Criminal Law, Art. 67.

4 See Opinion on Several Issues Concerning the Application of the Law in the Handling of Criminal Smuggling Cases (关于办理走私刑事案件适用法律若干问题的意见) released by the SPC, the SPP and the General Administration of Customs on July 8, 2002, Sec. 21.

5 According to Section 1 of the Opinion on Several Issues Concerning the Determination of Voluntary Confession and Meritorious Behavior in the Handling of Official Duty-Related Criminal Cases (关于办理职务犯罪案件认定自首、立功等量刑情节若干问题的意见) released by the SPC and the SPP on March 12, 2009, a voluntary confession by an entity can be established if (i) the entity, through a decision jointly made by its management or by a person in charge of the entity, voluntarily appears before the authorities and truthfully confesses its crime; or (ii) the person(s) directly in charge of the entity appears before authorities and truthfully confesses the crime committed by the entity.

6 For example, in August 2012, a court in Guangdong Province found Foshan Shengjian Road Project Supervision Co., Ltd. guilty of paying RMB1,050,000 to five government officials in order to secure contracts. In its judgment fining the company RMB500,000 and sentencing its chairman to nine months imprisonment, the court acknowledged that both had voluntarily confessed and therefore qualified for leniency. (See

7 While there are clear cases of individual perpetrators receiving mitigated sentences for voluntarily confessing, such as probation rather than imprisonment, because PRC law does not provide specific monetary penalties for corporate actors, it is difficult to assess whether corporate fines reflect similar reductions.

8 Foreign Corrupt Practices Act of 1977 (FCPA) (15 U.S.C. § 78dd-1, et seq.).

9 Under Chapter 8, an organization's self-reporting, cooperation and acceptance of responsibility may decrease its culpability score, leading to a reduction in fines.

10 Opinion on Several Issues concerning the Application of the Law in the Handling of Criminal Commercial Bribery Cases (关于办理商业贿赂刑事案件适用法律若干问题的意见) released by the SPC and the SPP on November 20, 2008, Art. 9.

11 Art. 12.

12 "State Personnel" refers to any person conducting public affairs at a state authority; any person conducting public affairs in state-owned companies and enterprises, institutions and public organizations; any person appointed by state authorities, state-owned companies and enterprises and institutions conducting public affairs in non-state owned companies, enterprises, institutions and public organizations; and any other person conducting public affairs in accordance with law. PRC Criminal Law, Art. 93. In 2011, China amended its Criminal Law to cover bribery directed at non-Chinese government officials.


13 Interpretation, Art. 1 and Regulations on the Thresholds of the Crime of Giving Bribes (最高人民检察院关于行贿罪立案标准的规定) issued by the SPP on December 22, 2000, Sec. 1.

14 Art. 2.

15 Art. 4.

16 Art. 3.

17 The Interpretation refers to Article 390 of the PRC Criminal Law which deals with individual bribery, but not Article 393, which addresses bribery by corporate perpetrators.

18 See note 13, supra.

19 See note 14, supra.

20 See note 15, supra.

21 See note 16, supra.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.