Law

On the Application of Criminal Law in the Mediation and Bribery of Private Enterprise Staff

2025-08-08   

In recent years, bribery has taken on new forms and brought new challenges. This special issue features two articles related to the crime of bribery, analyzing difficult issues in practice from different perspectives. The two articles respectively start from the definition of the subject and behavior mode of bribery, as well as the scope of criminal objects, which not only responds to the call for anti-corruption in the private economy, but also reflects on the needs of legal evaluation in the information society, in order to provide useful references for theoretical research and judicial practice. The private economy is an important driving force for the development of China's socialist market economy. China supports and guides private enterprises to strengthen internal corruption governance and integrity risk prevention and control, and protects the property rights and entrepreneurial interests of private enterprises in accordance with the law. In recent years, there have been frequent cases of bribery among employees of private enterprises, and new forms of bribery have emerged. The phenomenon of private enterprise employees mediating bribery is particularly prominent. Mediation and bribery by private enterprise staff refers to the practice of private enterprise staff using their own authority or position to obtain improper benefits for clients through the actions of other staff members in their positions. This includes two types of behavior patterns: intermediary and one-way. Intermediary type refers to the situation where the agent introduces the principal to other staff members who have convenient job positions, and under the joint action of the principal and the agent, uses the official behavior of other staff members to seek improper benefits for the principal and accept money; Unidirectional refers to the behavior where the perpetrator unilaterally exerts influence on other staff members who have the convenience of their position, causing the staff member to accept money for the purpose of seeking improper benefits for the client. Article 163 of the Criminal Law stipulates the crime of accepting bribes by non-state personnel, but does not explicitly set up the situation of mediating bribery as in the provision on accepting bribes by state personnel. Therefore, there is still controversy over whether the act of mediating bribery by private enterprise personnel can be included in the evaluation scope of Article 163, and a response plan is urgently needed. Article 388 of the Criminal Law prohibits the act of state officials mediating bribery. Therefore, at the normative level, the crime of bribery of state officials includes four types: soliciting bribes, accepting bribes, commercial bribery, and mediating bribery. However, Article 163 of the Criminal Law only includes three types of bribery for non-state personnel: soliciting bribes, accepting bribes, and accepting bribes for commercial purposes. Based on the current criminal law norms, the mediation and bribery behavior of private enterprise staff should be included in the evaluation of bribery crime norms, facing the following questions: firstly, Article 163 and Article 385 of the Criminal Law both contain the expression of "taking advantage of one's position", but there is still controversy over whether the same interpretation should be made. It remains to be clarified whether the use of personal authority or status by employees of private enterprises to accept bribes through the actions of other employees in their positions constitutes "taking advantage of personal convenience" under Article 163 of the Criminal Law, and whether the judgment on this issue should be consistent with the relevant norms of the crime of bribery of state employees. Secondly, if advocating for the same interpretation of "taking advantage of one's position" in different articles, it will face controversy over whether Article 388 and Article 385 of the Criminal Law belong to a parallel relationship or a subordinate relationship. If it is considered that Article 388 is a precautionary provision and subordinate to Article 385, and "using the convenience conditions formed by one's own authority or position to engage in acts of other state personnel in their positions" should be included in the "use of convenience in their positions", then the act of private enterprise personnel mediating bribery should also be included in the evaluation of Article 163 of the Criminal Law and will face criminal risks. If it is considered that Article 388 is a legal fiction and has a parallel relationship with Article 385, and "using the convenience conditions formed by one's own authority or position to act through the official duties of other state personnel" is different from "using the convenience of official duties", then it is difficult to handle the mediation bribery behavior of private enterprise personnel in accordance with Article 163 of the Criminal Law. Thirdly, if it is advocated that different interpretations can be made for the phrase "taking advantage of one's position" in different articles, then the understanding of the crime of bribery of non-state personnel can no longer consider the relevant provisions of the crime of bribery of state personnel. But does interpreting the convenience conditions formed by the use of one's own authority or position as "using the convenience of one's position" belong to analogical interpretation and violate the principles of criminal law? In response to the triple questioning, the normative interpretation of the mediation and bribery behavior of private enterprise staff should restrain its explanatory tension and ensure that it does not exceed the bottom line of the principle of legality. Firstly, in order to maintain the systematic and coordinated nature of criminal law norms, an important principle of legal interpretation is that specific wording should have the same meaning throughout the entire law. Both Article 163 and Article 385 of the Criminal Law contain the phrase 'taking advantage of one's position', which is the same wording and should have the same meaning. The Minutes of the National Symposium on the Trial of Economic Crime Cases by the Supreme People's Court in 2003 provided an explanation for Article 385 of the Criminal Law regarding the "use of convenience in one's position", which includes not only the use of one's own authority to oversee, be responsible for, or undertake a certain public affairs, but also the use of the authority of other state personnel who have subordinate or restrictive relationships in their positions. Although the relevant normative documents have not explained the "taking advantage of one's position" in Article 163 of the Criminal Law for the crime of accepting bribes by non-state personnel, the same position should be maintained when interpreting and applying it as the "taking advantage of one's position" in the crime of accepting bribes by state personnel. If a different position is taken based on the serious infringement of legal interests caused by the mediation and bribery behavior of private enterprise staff, and the convenience conditions formed by private enterprise staff using their own authority or status are interpreted as "taking advantage of their position of convenience", then the analogy interpretation is based on facts outside the criminal law norms, which goes against the principles of criminal law. Secondly, in order to ensure the consistency of criminal law norms, it is necessary to refer to other articles for the understanding and application of a certain provision. The relationship between the act of state officials mediating bribery as stipulated in Article 388 of the Criminal Law and Article 385 has become a controversial focus. How to understand the relationship between the bribery behaviors stipulated in different articles will directly affect the interpretation of the crime of accepting bribes by non-state personnel. The author believes that there is a parallel relationship between the two, and the act of mediating bribery is different from the bribery act in Article 385 of the Criminal Law. Scholars who hold the theory of subordination often regard the provision of Article 385 (1) as a general provision for the crime of bribery. However, China's criminal law does not provide a general definition of the crime of bribery. Articles 385 and 388 define four different types of bribery. The unification of the four different types of bribery as a general charge - bribery crime - is for the sake of legislative simplicity and does not mean that the constituent elements of the four criminal acts are completely identical. The reason is that there is not a one-to-one correspondence between the charges and the composition of the crime. It is necessary to strictly distinguish between the concepts of charges and crimes, and the composition of crimes is the fundamental basis for distinguishing different crimes. The distinction between mediating bribery and commercial bribery is quite clear, so it will not be repeated here. The focus of controversy lies in the relationship between mediating bribery and soliciting or accepting bribes. The core difference between the above-mentioned criminal acts lies not only in whether they need to seek benefits and whether the benefits sought are limited to improper benefits, but also in the different ways of conduct: there is no subordinate or restrictive relationship between the person who mediates bribery and the state personnel being used, and the reason why they can seek improper benefits for the principal is that the person's own authority or status has certain influence or work connections with other state personnel, and the bribe consideration is the person's mediation behavior; In the process of soliciting or accepting bribes, the perpetrator directly takes advantage of their position to accept the bribe, and the consideration for the bribe is their own official behavior. In summary, the application of criminal law to mediate bribery by private enterprise staff should be interpreted with the same basic meaning for the phrase "taking advantage of one's position" in Articles 163 and 385 of the Criminal Law; It is necessary to clarify and refer to the national system of bribery crimes for private enterprise staff, distinguish the constituent elements of different bribery crimes, and clarify the independence of mediation bribery behavior. Therefore, based on the adherence to the principle of legality of crime and punishment, it is currently impossible to punish the bribery behavior of private enterprise staff through the application of Article 163 of the Criminal Law. The Law on the Promotion of Private Economy proposes that "the state promotes the construction of a system and mechanism for preventing and governing corruption at the source of private economic organizations" and "promotes the improvement of the level of legal and compliant operation and management of private economic organizations, and timely prevention, detection, and governance of illegal and irregular operations". The preliminary law provides a framework for anti-corruption guidance for private enterprises, but also means that more detailed institutional arrangements and stronger criminal law protection are needed to truly transform principled provisions into effective anti-corruption mechanisms for private enterprises. It is necessary to establish a path of criminalization based on the serious infringement of legal interests caused by the mediation and bribery behavior of private enterprise staff. The criminalization approach of mediating bribery by state officials can provide reference for this. In 1989, the Supreme People's Court and the Supreme People's Procuratorate issued the "Reply to Several Issues on the Implementation of the Supplementary Provisions on Punishing the Crimes of Corruption and Bribery", which proposed that "state officials do not directly use their own powers, but use the convenience conditions formed by their own powers or positions to seek benefits for the principal through the actions of other state officials in their positions, and from which they demand or illegally accept property from the principal, they should be punished for bribery." Essentially, this is achieved through judicial interpretation. When the Criminal Law was revised in 1997, Article 388 was established, which clearly stipulated the act of state officials mediating bribery. Therefore, in order to effectively address the phenomenon of private enterprise staff mediating bribery in practice, strengthen the governance of internal corruption in private enterprises, and protect the legitimate rights and interests of private enterprises, it can be included in the scope of criminal law evaluation through judicial interpretations in the short term. However, considering the clarity and long-term nature of the norms, it is necessary to directly add the crime of non-state personnel mediating bribery in the criminal law. (The author's affiliations are the Law School of Southwest University of Political Science and Law and the Economic Investigation Corps of Zhejiang Provincial Public Security Department) (News Agency)

Edit:Wang Shu Ying Responsible editor:Li Jie

Source:Law Daily·Legal Weekly

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