Research On The Legal Regulations Of Commercial Bribery In Government Procurement

The government procurement system has been initially established in our country. Although it plays a positive role in improving the efficiency in the use of financial resources and government macro-control, it still needs further improvement. In recent years, commercial bribery, as a kind of unfair competition act, has spread quickly in business transactions, and the government procurement area is one of the "most serious areas" where bribery prevails. Commercial bribery in government procurement not only impairs other businessmen's rights to fair competition, but also damages recently established government procurement system. It is detrimental to maintaining "fair, open and impartial" market competition environment. Therefore, it is particularly important to regulate commercial bribery in government procurement. Because of this, the author chose to study legal regulation of commercial bribery in government procurement, the aim is to effectively fight against commercial bribery in government procurement by improving legislation. To concretely speaking, the author, from the view of the economic law, discusses how to effectively fight against commercial bribery in government procurement by using several research methods, such as comparative research method.The thesis can be divided into seven parts:the first part is the introduction. The second part is the summary of the commercial bribery in government procurement. On the basis of explaining what is the government procurement and commercial bribery in our country, it defines the commercial bribery in government procurement and makes a comparison with other commercial bribery by analyzing its own characteristics. The third part makes an analysis of the basic problems that exist in the commercial bribery in government procurement, such as its prone links, approaches, and perniciousness. Further more it indicates the necessity of the regulations about commercial bribery in government procurement. The fourth part observes the legal reasons in the current situation of the commercial bribery in government procurement and its poor administration. First, it describes the current legislative situation in the commercial bribery in government procurement. Then it analyzes the legal reasons that lead to the poor administration in practicing, such as the defects in legislation, the collision between the use of laws, and the loose enforcement. The fifth part is about how to absorb the international experiences of the regulations of the commercial bribery in government procurement. It summarizes the international experiences that suit our country by mainly introducing the UN's convention against corruption and the relative laws in US (a representative of strong government procurement). The sixth part makes a survey of how to improve the regulations of the commercial bribery in government procurement from different aspects, such as the improvement of legislation in different departments, the clarity and coordination of the use of different laws, the enhancement of punishment during the enforcement. In the end, the last part is the conclusion of the thesis.The thesis mainly emphasizes on the fourth part and the sixth part. The fourth part summarizes the legal reasons in the poor administration of the current commercial bribery in government procurement as following:First, the legislation is not perfect enough;the definition of commercial bribery is not clear; the obviation act of related person is not specified; the setting conditions of the supplier is not clear; the settings of legal responsibilities is irrational according to the commercial bribery in government procurement; the specifications of afterwards distrust and complaints is too rigid. Second, there exist conflicts between the rules and regulations and disunity between the administrations. There are clashes in the application of legal responsibilities, and the accusation regulations are not always in the same direction. Third, there exists slack law enforcement. The enforcement of law is weak, methods are unitary and judicial investigation lacks strength. According to the above problems, the sixth part makes a suggestion of improving the regulations from three aspects:first, improve the relative legislations. Define the commercial bribery clearly and explicit its legal responsibility in the Anti-unfair Competition Law. Improve the information disclosure system, the query and complaint system and the reporting encouragement system in the government procurement. Second, make a coordination of the relative laws. Clear the administration department and legal responsibility in the Government Procurement Law and the Bidding Law. Meanwhile, coordinate the relations of the two laws with the Anti-unfair Competition Law in using them. Third, enhance the punishment during the enforcement of law. Increase the ways of administration enforcement and the degrees of inspection and punishment.Based on the present rules and regulations, this thesis emphasized the application of the related laws. Its main point of innovation lies in the suggestion which the legislation department had better set up a directory document dealing with the regulations about commercial bribery in government procurement, thus it can do a better job in classifying the matching regulation documents and putting the participants into the enforcement work. The document can have specifications as applying the Government Procurement Law to the commercial bribery actions in government procurement, or applying the Bidding Law in the project bidding process, but none of them can go against with the Government Procurement Law and Anti-unfair Competition Law. In general cases, the financial departments conduct the supervision work during the government procurement process. If no commercial bribery acts have been found by financial departments, the business administrations can give punishment to the commercial bribery acts according to the Anti-unfair Competition Law and the temporary regulations. When it is involved with criminal law, it needs further disposition of the judicial departments.