On Commercial Bribery Legislation And Its Improvement

At present, with national economy steadily developing and market economic systemconstantly improving, a fair, open and just competition system has gradually been establishedin China. However, unfair competitive actions, which aim at gaining competitive advantagethrough violating market competition rules, severely undermine sincerity and honesty of themarket environment. And commercial bribery is a typical act of unfair competition. With thedeepening of China’s economic reform, commercial bribery, not curbed but more rampant,restricts the pace of China’s sound and rapid economic development. Therefore, it is animminent task for the government to improve laws and regulations on commercial bribery.Compared to western countries with legal history and tradition, there is a legislative lagin China’s legal framework for commercial bribery. Nearly20years after its enactment, theAnti-Unfair Competition Law (“AUCL”) has not been modified and is no longer adapted tothe actual needs of social and economic development, thus falling short of effectiveness andcausing confusion and disputes in its enforcement actions. Meanwhile, theoretical study oncommercial bribery in China is relatively weak and out of touch with practical operation,without consensus on key constituent elements and legislation style. This paper attempts toanalyze defects of existing laws and regulations on commercial bribery in China throughconcept, characteristics, hazards and other content, introduce commercial bribery legislationin other countries as well as the significance, and raise suggestions on improving laws andregulations on commercial bribery in China.Apart from introduction and conclusion, this paper is consisted of the following fourparts.The first part offers an overview of commercial bribery. This part approaches in orderthe concept, characteristics, hazards of commercial bribery and key factors for thedetermination of what constitutes commercial bribery, clarifies a misreading of Article8ofthe AUCL, analyzes the universality, stealthiness, and multiple illegal traits of commercialbribery, and points out its threats to competition order, consumer interests, and encouragingcorruption. This part also distinguishes commercial bribery from rebates, discounts,commission, and bonus on the basis of enforcement practice and the nature of commercialbribery. The second part discusses commercial bribery legislation in China and its defects.Chinese laws and regulations relating to commercial bribery in criminal legislation andeconomic legislation are outlined in this part. In criminal legislation, commercial bribery isfound to be narrowly defined, with light punishment and few property penalty methods. Ineconomic legislation, key elements of commercial bribery are left unidentified, distribution oflegislations is unreasonable, and punishment is ineffective.The third part describes overseas commercial bribery legislation profiles. Developedwestern countries are experienced with anti-commercial bribery actions and have developedcomplete laws and regulations. And their experience affords us lessons that merit attention,for instance, the successful appliance of Overseas Anti-Corruption Law in the United States,frequent modifications of the provisions of the law on commercial bribery in Japan, and theadvanced legislative provisions on the concept of commercial bribery in Germany.The final part is about suggestions on improving legal regulation of commercial briberyin China. In criminal law, it is proposed to expand the definition of the scope of the bribe,increase the penalties for the crime of bribery, increase the range of property types andapplicable penalty, and repeal the application of the death penalty for commercial bribery; Ineconomic law, it is recommended to perfect definition of commercial bribery and itslegislative system, intensify administrative penalties, and enhance provisions regarding“bonus” under the legal hierarchy. It is also proposed that overseas commercial bribery beregulated and rules of commercial bribery whistleblower established.