| Commercial bribery as a commercial activity in the "hidden rules" seriously harm fair competition order, the operator will focus on "engaging in relationships," exchange gain competitive advantage through illegal profits, crowding out other competitors, so that normal quality, price, Services and other factors in the failure of market choice and, ultimately, the impact of the cornerstone of the market economy-competition, commercial bribery rules is important. However, on that standard commercial bribery, the practice is not unified understanding, particularly reflected in the different aspects of bribery subject, therefore, subject to bribery as the Perspective identified problem of commercial bribery, have practical significance. In addition to the introduction and conclusion, the article body part altogether four chapters.Chapter I: bribery body type of summary. This chapter is divided into three sections: The first section of the main body of legislation on bribery were reviewed; Section II describes the dispute about the academic point of view and its controversial focus is given to trading counterparties property could constitute commercial bribery; third section on enforcement practices and related cases of the sort. By induction of the first chapter, bribery basic body identified as "trading counterpart employee", "trading counterparties," "third party other than trading relationship" and other three types.Chapter II: study trading counterparties employee subject to bribery. This chapter is divided into two sections: the first made to the opposite side of the bribery transaction employee is the typical form of commercial bribery, and in other countries as evidence of doctrine and legislation; Section driven perspective due to the reasons set forth, specifically, thin divided into two aspects, one based on the flow of commercial interests, that the essence of commercial bribery is bribery and bribery of people who buy betrayal, the second is based on transaction information to pass, that the commercial bribery occurs because that transaction information transfer derogation process occurred. And thus concluded that the opposite side of the bribery transaction employee is a typical form of commercial bribery.Chapter III: study trading counterparties subject to bribery. This chapter is divided into four sections, the fundamental problem is that the counterparty to the transaction could give property constitute commercial bribery. Section I: affirmed that the way in the form of logical deduction drawn a positive conclusion. Section II: negative to say, the use of motive analysis, that the transaction counterparty lack of willingness commercial interests of exchange, that is party to the transaction is not possible because the other party to accept payment of "little benefit" and give each other a "great interest" and therefore, theoretically impossible to constitute commercial bribery. Section III: compromise between trying to say say for sure to find a balance and negative to say that under normal circumstances is not found commercial bribery, but when one is sufficient to distort the normal payment of interest of quality, service, identified as commercial bribery when price competition. Section IV: The author of the three views, respectively, were reviewed to analyze the strengths and weaknesses, and proposals and legislative practice two levels, at a practical level, the author attempts to draw the "horizontal agreement restricting competition" and "vertical restraints Competition Agreement, " the difference between the standard, that is, for " the opposite side of the bribery transaction employee " of a typical commercial bribery, to the principle per se; for " to trading counterparties bribe " atypical commercial bribery, in order to determine the reasonableness of the principle; At the legislative level, in the long run, China’s commercial bribery legislation should be subject to bribery as the core, and the introduction of "Driver Analysis", "intermediate interest", "interest swap", "information transfer" and other factors that standard.Chapter IV: Subject of the trading relationship than the third person bribes. This chapter consists of three sections: The first section analyzes due to the nature of the move from commercial bribery, obtain transaction by a third person other than the body can become bribery. Section II of the third person were classified, according to a third person source transaction party influence, the third person is how it affects the transaction, the third party can be divided into control and management model, asymmetric information type, friendship call type. Section III is the third person on bribery and intermediary, the difference between the commission decision, which in practice is one of the difficulties, I believe that it should abandon the deal with the financial books, the third party business qualification criteria, and should adhere to the nature of the behavior analysis, as a third party commercial bribery investigation of a breakthrough. |
