In China, current key anti-bribery and corruption legislation are as follows:

Laws:

1. the PRC Criminal Law (刑法): effective since October 1, 1997, and recently amended in March 2021; and
2. the PRC Anti-unfair Competition Law (“AUCL”,åä¸æ­£å½“竞争法): effective since December 1, 1993, and recently amended in April 2019.

Administrative Regulation:

• the Interim Provisions of the State Administration for Industry and Commerce on Prohibition of Commercial Bribery (“Interim Provisions”, 关于ç¦æ­¢å•†ä¸šè´¿èµ‚行为的暂行规定), promulgated in November 1996 by the State Administration for Industry and Commerce ("SAIC", “国家工商行政管ç†æ€»å±€”), and supposed to be revised soon in accordance with the newly revised AUCL.  Please note that SAIC is now integrated into State Administration for Market Regulation (SAMR, “国家市场监ç£ç®¡ç†æ€»å±€”).

For certain sectors of industries such as pharmaceuticals, there are laws and regulations specifically applicable to them.

Yes. Both the Criminal Law and the AUCL have undergone substantial revisions since 2008.  

1. Criminal Law

1. Amendment VII to Criminal Law in 2009

Amendment VII criminalizes accepting bribes by a close relative of a State Functionary or any other person who has a close relationship with the said State Functionary. The aforementioned individuals may be criminally liable for asking for or accepting properties in exchange for seeking illegitimate benefits for others who provide bribes through the performance of any duty of the said State Functionary or taking the advantage of the said State Functionary’s authority or position (Article 3 of Amendment VII and Article 388(I) of the revised Criminal Law). 

2. Amendment VIII to Criminal Law in 2011

Amendment VIII criminalizes offering bribes to a functionary of a foreign country or an official of an international public organization. Anyone who offers bribes to the aforementioned functionary in order to seek illegitimate benefit may be criminally liable (Article 29 of Amendment VIII and Article 164 of the revised Criminal Law). 

3. Amendment XI to Criminal Law in 2015

Amendment XI criminalizes offering bribes to any close relative of a State Functionary or any other person who has a close relationship with the said State Functionary, or any dismissed State Functionary or any of his or her close relatives or any other person with whom there is a close relationship (Article 46 of the Amendment XI and Article 390 of the revised Criminal Law).  

Moreover, Amendment XI included monetary penalty to the crime of offering bribes, the crime of offering bribes to state authorities, state-owned companies/enterprises/institutions, or public groups, the crime of introducing bribery, the crime of offering bribes by entities and the crime of bribing non-State Functionaries  (please the answer to "Is there criminal liability for corporate entities who have either paid or accepted a bribe payment?" for a detailed introduction and distinctions of different bribery crimes under the Criminal Law).

4. Interpretation on Issues Concerning Application of Law in Handling Criminal Cases of Corruption and Bribery by the Supreme People's Court and the Supreme People's Procuratorate in 2016

The threshold of criminal liabilities of (i) State Functionary receiving bribes and (ii) individual providing bribes to State Functionaries was raised to RMB 30,000, which could be lowered to RMB 10,000 if special circumstances as provided by law are met.

In addition, the threshold of criminal liabilities of (i) non-State Functionary receiving bribes and (ii) individual providing bribes to non-State Functionaries was raised to RMB 60,000.

5. Amendment XI to Criminal Law in 2021

Amendment XI elevated the maximum penalties to the crime of accepting bribes by non-State Functionary from 15-year imprisonment to life imprisonment and adjusted the penalty of confiscation of property to fines. In addition, Amendment XI adjusted the two tiers of criminal penalties to three tiers, adding the “especially huge amount” as the sentencing criteria for the third tier (Article 10 of the Amendment XI and Article 163 of the revised Criminal Law).

Amendment XI elevated the maximum penalties to the crime of embezzlement by taking advantage of positions from 15-year imprisonment to life imprisonment and adjusted the penalty of confiscation of property to fines. In addition, Amendment XI adjusted the two tiers of criminal penalties to three tiers, adding the “especially huge amount” as the sentencing criteria for the third tier (Article 29 of the Amendment XI and Article 271 of the revised Criminal Law).

2. Amendment XI elevated the maximum penalties to the crime of offering bribes to non-State Functionary from 10-year imprisonment to 15-year imprisonment. In addition, Amendment XI adjusted the two tiers of criminal penalties to three tiers, adding the “especially huge amount” as the sentencing criteria for the third tier (Article 30 of the Amendment XI and Article 272 of the revised Criminal Law). AUCL

The AUCL was substantially amended in 2017. The Amended AUCL, effective from January 2018, explicitly prohibits business operators from offering commercial bribes to the following entities and individuals to seek transaction opportunity or competitive advantage: (i) any employee of the counterparty to a transaction; (ii) any entity or individual entrusted by the counterparty to a transaction to handle relevant affairs; (iii) any entity or individual that is likely to take advantage of its power or influence to affect a transaction. Compared to the AUCL first promulgated in 1993, the provision of benefits to a counterparty to a transaction is no longer deemed as bribery (See Article 7 of the Amended AUCL). In addition, the Amended AUCL increases the amount of highest administrative fines of commercial bribery from RMB 200,000 to RMB 3,000,000.

Yes.  

Criminal Law Perspective 

Under Article 389 of the Criminal Law, individuals who offer bribes to State Functionaries for the purpose of seeking illegitimate benefits are subject to criminal liabilities including life imprisonment, fixed-term imprisonment, or criminal detention, as well as a monetary penalty of the fine or confiscation of the property.

Under Article 393 of the Criminal Law, entities who offer bribes including kickbacks, procedure fees, to State Functionaries for the purpose of seeking illegitimate benefits will be fined.  Its direct responsible person-in-charge and other directly liable persons would be subject to criminal liabilities including fixed-term imprisonment up to five years or criminal detention and fine.

Administrative Law Perspective

It is commercial bribery under the Amended AUCL for a domestic government official who is likely to take advantage of his or her power or influence to affect a transaction in order to take bribery. The administrative penalties may follow. 

Yes. 

Criminal Law Perspective 

Under Article 164 of the Criminal Law, individuals or Entities who offer any property to a functionary of a foreign country or an official of an international public organization for the purpose of seeking any illegitimate commercial benefit are subject to criminal liabilities including fixed-term imprisonment up to ten years or criminal detention and fine penalty.  

Where an entity commits such a crime, a fine shall be imposed on the entity and its direct responsible person-in-charge and other directly liable persons would be subject to criminal liabilities including fixed-term imprisonment up to ten years or criminal detention and fine penalty.  

Administrative Law Perspective

Similar to discussions under "Is a bribe payment to domestic government officials prohibited by the legislation?", it is a commercial bribery under AUCL for a foreign government official who is likely to take advantage of his or her power or influence to affect a transaction in order to take bribery.

Yes. Both requesting and accepting a bribe are prohibited, either from a criminal or administrative law perspective.

Criminal Law Perspective

Requesting a bribe and accepting a bribe are both prohibited by the Criminal Law.  

Under Article 385 of the Criminal Law, State Functionaries should be held criminally liable for requesting money and properties from other people or illegally accepting money and things from bribers in exchange for seeking benefits for the bribers. State Functionaries, in violation of relevant state provisions, accepting various kinds of kickback and “procedure fees” in economic activities for such State Functionaries’ personal use are also be criminally liable for accepting bribes.  

Under Article 388 of the Criminal Law, State Functionaries request or accept properties from bribers at the cost of helping bribers to seek illegitimate gain, by taking advantage of the facilities created by their authority of office or position, or through the action related to the post of other State Functionaries, should be criminally liable for accepting bribes.

Under Article 388-1 of the Criminal Law, close relatives of a State Functionary or any other person who has a close relationship with the said State Functionary may become criminally liable for requesting or accepting properties in exchange for seeking illegitimate benefits for bribers through performance of any duty of the said State Functionary or taking the advantage of the said State Functionary’s authority or position.  State Functionaries who have left his or her position (“Former State Functionaries”) or their close relatives or any other person who has a close relationship with such Former State Functionaries, if requesting or accepting properties from bribers in exchange for illegitimate benefits, should be criminally liable for taking the advantages of such Former State Functionaries’ power or position.

Under Article 163 of the Criminal Law, employees of a company, enterprise, or any other Corporate Entity request or accept any property from bribers by taking advantage of their position in exchange for seeking any benefits for such bribers, when threshold are met, could be subject to criminal liabilities of fixed-term imprisonment, criminal detention, and confiscation of properties (if applicable).  Please note that though the Criminal Law is silent on situations in which Corporate Entities request or accept bribes, if bribes offered during business activities as kickbacks and “procedural fees” to Corporate Entities are in fact accepted and held by individual employees by taking advantage of such employees’ duty, such employees could be subject to criminal liabilities of fixed-term imprisonment, criminal detention, and confiscation of properties (if applicable).  

Administrative Law Perspective

Though the Amended AUCL is silent on administrative penalty of requesting or accepting a bribe, under Article 4 of the Interim Provisions, any individuals or entities are prohibited from accepting or requesting bribes in sales or purchase of commodities. Article 5 of the Interim Provisions further provides that accepting kickbacks by counterpart organizations or individuals secretly and off-the-book shall be treated as accepting bribes.  

Criminal Law Perspective

Under Articles 6 and 7 of the Criminal Law, the Criminal Law applies to conducts committed by any individual or entities within the territory of China and any conducts by any citizens of China outside the territory of China. Therefore, foreign Corporate Entities conducting business in China and employees of such foreign Corporate Entities are subject to Criminal Law. 

Administrative Law Perspective

Under Article 2 of the AUCL, business operators, including individuals, entities, or other unincorporated organizations, who engage in the manufacturing or trading of commodities or providing services within the territory of China are subject to the AUCL and Interim Provisions.  Please note that Article 7 of the Amended AUCL explicitly requires business operators to be liable for commercial bribery activities conducted by their employees unless such business operators could otherwise provide evidence that such bribery is not related to efforts of seeking a transaction opportunity or competitive advantage for the business operator.

Corporate Entities could be subject to criminal liability for payment of bribes. However, the Criminal Law is silent on criminal liability for Corporate Entities for acceptance of bribe payment.  

Under the Criminal Law, Corporate Entities would be subject to criminal liabilities under the crime of an entity offering bribes (Art. 393), bribing non-State Functionaries (Art. 164), bribing a functionary of a foreign country or an official of an international public organization (Art. 164), bribing an entity (Art. 391), and bribing a person who can influence a State Functionary (Art. 390-1).

Criminal Law Perspective

Under the Criminal Law, criminal penalties imposed on individuals include death penalty (rare), life imprisonment, fixed-term imprisonment, criminal detention, fines, and confiscation of property.  

Please note that when Corporate Entities are held criminally liable, such Entities shall be fined, and its direct responsible person-in-charge and other directly liable persons may be sentenced to criminal liabilities of imprisonment, criminal detention, fines, and confiscation of property.  

Administrative Law Perspective 

Under Article 19 of the Amended AUCL, administrative penalties for commercial bribery include fines between RMB 100,000 and RMB 3,000,000, confiscation of illegal income, and revoke of business license (if applicable).  Under Article 9 of the Interim Provisions, individuals who accept bribes could also be subject to administrative penalties as business operators do. 

Please note that a Corporate Entity could be liable for individual employees’ violation of AUCL, as discussed in the answer to "Who is subject to the legislation?". 

Criminal Law Perspective

Under the Criminal Law, criminal penalties imposed on such Corporate Entities include fines, together with imprisonment, criminal detention, fines and confiscation of property imposed on its direct responsible person-in-charge and other directly liable persons.  

Administrative Law Perspective

Corporate Entities, when qualifying as the business operators under the AUCL (as mentioned in the answer to "Who is subject to the legislation?"), would be subject to administrative penalties. Under Article 19 of the Amended AUCL, administrative penalties for commercial bribery include fines between RMB 100,000 and RMB 3,000,000, confiscation of illegal income, and revoke of business license (if applicable).

Criminal Law Perspective

The current context of Criminal Law is silent on whether a compliance program designed to prevent bribery is a defense. In practice, compliance programs and evidence that the Corporate Entity has taken substantial measures to implement the compliance program may serve as mitigating factors in courts’ decisions of specific criminal liabilities, especially while demonstrating that the Corporate Entity does not have the criminal intent or constitute entity crimes.

In recent years, the people’s procuratorates in China have initiated a pilot program called “corporate compliance with non-prosecution”. Under such a program, if the Corporate Entity involved in crimes actively establishes an effective compliance system to prevent similar criminal conducts from happening in the future and passes the assessment of competent authorities, such Corporate Entity would not be prosecuted or would receive lenience on its penalty.

Administrative Law Perspective

Under Article 25 of the Amended AUCL, a mitigated administrative penalty could be imposed on business operators who voluntarily eliminates or mitigates the harmful consequences of its illegal acts, and if the illegal act is minor and corrected in a timely manner without any harmful consequences, the administrative penalty could be exempted. In practice, a sound compliance program and evidence that the Corporate Entity has taken substantial measures to implement the compliance program could be submitted to the administrative authorities as mitigating factors against administrative penalties.  

Criminal Law Perspective

Plea bargaining has not been established under the current Criminal Law or Criminal Procedure Law in China. 

However, under Article 164 of the Criminal Law, a briber, who voluntarily confesses to its bribery act before a criminal investigation against such a briber is initiated, may be given a mitigated penalty or be exempted from criminal penalty. Please note that such a mitigated penalty is limited to the crime of offering bribes to non-State Functionaries and the crime of offering bribes to a functionary of a foreign country or an official of an international public organization.  For other bribery-related crimes, the general rule under the Criminal Law that providing important clues leading to cracking of other cases could serve as a factor for a mitigated criminal penalty or be exempted from penalty.  In addition, under Article 272 of the Criminal Law, if the person who commits the crime of misappropriation of funds returns all the misappropriated funds before the prosecution is filed, he/she may be lighter or mitigated penalty, or even be exempted from criminal penalty if the crime if relatively light.

With the pilot program of “corporate compliance with non-prosecution”, Corporate Entity could receive lenience on its prosecution or penalty, as mentioned in the answer to “Assuming corporate entities are liable for violating the anti-corruption law, is it possible for a corporate entity to reach a deferred prosecution agreement or leniency agreement with the enforcement authorities?”.

However, no deferred prosecution agreement or leniency agreement would be entered with the procuratorate, so a lighter, mitigated, or exempted criminal penalty is not guaranteed. 

Administrative Law Perspective

There is no written leniency agreement under the Amended AUCL. However, as mentioned in the answer to "Assuming corporate entities are liable for violating the legislation, does having a compliance program designed to prevent bribery constitute a defense?", Article 25 of the Amended AUCL provides that a lighter or mitigated administrative penalty could be imposed on business operators who voluntarily eliminates or mitigates the harmful consequences of its illegal acts, and if the illegal act is minor and corrected in a timely manner without any harmful consequences, the administrative penalty could be exempted. In practice, the administrative authorities take various factors into consideration when deciding the administrative penalty, including but not limited to the cooperation provided by business operators for the administrative investigation and mitigating measures taken by the business operators during the investigations.