Nowadays, in the commercial background, there are some employee get fired out of commercial bribery. Commercial bribery harms not only the regulation and reputation within the normal commercial process of the employer, but more the other competitors, even the whole social competitive system. Therefore, the state sets definite administrative responsibility and criminal responsibility for commercial bribery behavior in Anti-Unfair Competition Law, and to comply with the law and to protect self-interest, employers also prohibit the commercial behavior in their regulation.
To ensure the employer could dismiss the employee who violate the law or regulation with a commercial bribery behavior lawfully, the lawyer investigated and researched the type of case and made the analysis and gave the advice as below.
1. Raise of the Question and Restrict the Scope
（1）The definition of Commercial Bribery in Anti-unfair Competition Law
According to the second paragraph of Article 2, Interim Provisions on Banning Commercial Bribery, which was made based on Anti-Unfair Competition Law,
"For the purpose of these Provisions, the term 'commercial bribery' refers to a business operator's bribery of another entity or individual with property or by other means in order to sell or purchase commodities."
The commercial bribery referred here is compose of the below several factors:
① the subject of the behavior is the operator;
② it infringes the fair competitive order;
③ with a purpose of to sell or purchase commodities;
④ the object of the behavior is another entity or individual;
⑤ the behavior was made with property or by other means.
（2）Analysis of the Legal Paths of the Dismissal
Labor cases involved with commercial bribery, normally concern on the legitimacy of the employer's dismissal behavior when the employee bribe or get bribed with property or by other means.
Thus, there are overlap between anti-unfair competitive law department and labor law department. When employers dismiss the employee out of his or her commercial bribery behavior, the employer may choose one of the three legal paths:
① Dismiss out of that the employee was imposed a criminal responsibility, according to Article 36, (6) of Labor Contract Law of the People's Republic of China (hereinafter referred to as "the PRC Labor Contract Law"), when the employee's commercial bribery behavior was judged committed a crime and imposed corresponding criminal responsibility 1.
② Dismiss out of that the employee's jobbery incurred significant damage to the employer, according to Article 39, (3) of the PRC Labor Contract Law, when the employee's behavior was defined a violation of law and it caused that the employer 2 was imposed corresponding administrative responsibility or civil responsibility. (whether there is a jobbery and the definition of "significant damage" should be judged through the employee's regulation.)
③ Dismiss out of a severe violation of the employee's regulation, according to Article 39, (2) of the PRC Labor Contract Law, when there was not any criminal or administrational responsibility incurred.
Under legal path A and B, because of the intervene of the public authority, it is relatively easier and more direct for the employer to prove the relevant fact. The article will focus more on legal path C.
Under legal path C, the employer should prove:
① the employee conducted a commercial bribery;
② there are a lawful and valid regulation of the employer, in which stipulated the approach and the responsibility of commercial bribery reasonably3;
③ the dismissal procedures were lawful.
Among the above three proving requirements, requirement A is epitomized the characteristic of the legal path as well as the hardest to prove.
The below article will discuss mainly on features of the evidence within the dismissal case regarding commercial bribery and the prove burden to the employer required by the judicial department in practice, then arm the employer with several referenceable means and techniques to gain the evidence.
2. Features of the Evidence within the Dismissal Case regarding Commercial Bribery and the Prove Burden to the Employer Required by the Judicial Department in Practice
（1）Features of the Evidence within the Dismissal Case regarding Commercial Bribery
According to judicial practice, the evidence that could prove a person conducted a commercial bribery behavior has the several features:
① The form and the type of the evidence are relatively restricted, mainly the confession of the actor. The physical evidence is barely collected because it is usually the currency of other valuable thing rather than a certain matter as the direct object of the behavior.
② It is most the indirect instead of the direct evidence could be accessed. The actual transaction is normally processed outside of the workplace, without any witness nor agreement, quite private and hidden.
③ The support or testimony from the counterpart of the commercial bribery behavior will greatly influence the case.
（2）Prove Burden to the Employer Required by the Judicial Department in Practice
We researched the type of case, in which the employer dismissed the employee out of that the later one's commercial bribery behavior consisted a severe violation to the regulation and there was not any criminal judgement regarding the commercial bribery behavior, and found during 2009-2017, there were 35 cases relevant, among which, in A. 22 cases, the dismissal was judged illegal, and in B. 13 cases, the dismissal was judged legal. Among the 13 legal dismissal cases, in C. 11 cases the employee admitted the existence of the commercial bribery related behavior but denied the behavior should be deemed as a commercial bribery, only in D. 2 cases under the circumstances of that the employee denied the existence of the commercial bribery related behavior, the evidence the employer provided reached the requirement of the judicial department.
The requirement for the evidence from the judicial department could be divided into 2 aspects: requirement for the allocation to the burden of proof and requirement for the degree of proof.
As for the requirement for the allocation to the burden of proof, due to the dismissal fact, the rule of the shift of burden of proof is applied. When the employee claims the employer's dismissal illegal, the employer must prove the whole fact concerning the dismissal, including the substantial part (the employee conducted the commercial bribery behavior and there are relevant rules in the valid and effective regulation of the employer) and the procedural part (the employer informed the labor union of the dismissal and sent the employee the dismissal notice).
As for the requirement for the degree of proof, the high demand to the employer in the labor law concentrates on the strongly dependence on the direct evidence, to be more specific, the employee's confession to the fact and acknowledgement to the proof. In the only 2 dismissing legal without the employee's confirmation of the commercial bribery related behavior cases, there are direct evidence of the commercial bribery related behavior, such as the supplier or customer provided the video of the employee's commercial bribery behavior or appear in the court as a witness. We did not find any case, in which the court judged the dismissal legal without any direct evidence provided.
To be conclude, the judicial department normally do not separate the dismissal labor case involved with commercial bribery from other dismissal labor case out of other reasons, and pose the employer the same burden of proof, which challenges the employer greatly.
3. Several Referenceable Means and Techniques for the Employer to Gain the Evidence
To assist the employer to dismiss legally when faced with the employee's commercial bribery behavior, we concluded several referenceable means and techniques as below.
Firstly, it is much safer to submit the case to the prosecution office immediately, and dismiss the employee according to legal path A. Article 36, (6) of the PRC Labor Contract Law, when the employee's commercial bribery behavior was judged committed a crime and imposed corresponding criminal responsibility afterwards, which will diminish the cost and the litigation risks substantially.
Besides, whether the case should be submitted to the administrative department need to take the employer's legal risks and reputation risks into account. Because under the legal path B, when the administrative department get involved, it is the employer instead of the employee would assume the responding administrative responsibility, which is a high amount of fine.
Secondly, the employer must investigate and collect the proof by itself if the public authority is unavailable. Here are some perusal techniques.
① Normally, the information source was report inside of the company or complaint from outside. The employer could dig the information preliminarily, get aware of the basic facts and find the evidence as much as possible.
② Based on the facts and relevant evidence collected, it is vital to conduct a talk with the employee, which may determine the outcome of the possible subsequent dispute. Well preparation and effective pressure controlling will push the employee admit the fact directly or express contradictorily. The details below need to be paid with extreme notice:
i. Evaluate the materials gained, guess the possible fact and make a talking plan;
ii. No tell the employee the talking topic when informing him or her the talk. It is best to acquire the first response;
iii. Choose an office with camera as the talking location and video the whole talking process.
iv. Make a record of the conversation;
v. The subject representing the employer should be experienced and flexible, striving to gain more facts and the admission of the facts from the employee;
vi. Ask the employee sign the conversation record at the end.
③ The employer could also seek to collect the proofs from the counterpart of the employee's commercial bribery behavior, such as the supplier or the customer, eventually ask him or her to appear on the court as a witness, in case that the employee does not admit the fact in the talk or just to reinforce the proof chain.
1 Interim Provisions on Banning Commercial Bribery
Article 9 Where a business operator sells or purchases commodities by means of bribery, in violation of these Provisions, the competent administrative department for industry and commerce shall, pursuant to Article 22 of the Anti-unfair Competition Law, impose a fine of not less than 10,000 yuan but not more than 200,000 yuan according to the actual circumstances, and confiscate the illegal income if any; and if any crime is constituted, transfer the case to the judicial organ for criminal investigation.
Where a relevant entity or individual accepts a bribe when purchasing or selling commodities, the competent administrative department for industry and commerce shall impose a punishment pursuant to the preceding paragraph; and, if any crime is constituted, transfer the case to the judicial organ for criminal investigation."
2 Interim Provisions on Banning Commercial Bribery
Article 3 Commercial bribery committed by any employee of a business operator for selling or purchasing commodities for the operator shall be regarded as the operator's act."
3 However, there are case in which the employer did not provide the regulation as a proof while the court still judged the dismissal legal. Because commercial bribery is so pernicious that even there was not any stipulation in the employer's regulation, it is also possible that the judicial department judge the dismissal legal.
4 According to the criminal case involving commercial bribery, the confession of the actor is also the key proof within.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.