Commercial Bribery And Validity Of Contract

In violation of the principle of fair competition, to gain trading opportunities or other economic benefits by giving or receiving money, valuables or other interests constitutes commercial bribery. The existence and spread of commercial bribery not only damage the fair and orderly competition order, but also distort the normal business ethics, corrupt the social convention, and even threaten the democratic political system of a country. Therefore commercial bribery is no doubt regulated by national and international laws. As to the validity of contract procured by bribery, there are divergent opinions both in theory and judicial practice. Since correctly deciding the validity of contract procured by bribery is important to bribery regulation even to the protection of fair competition environment of market. Therefore, this paper intends to explore and study the validity of contract procured by bribery.This paper mainly consists of six parts:The first part mainly discusses some cases referring to the validity of contract procured by bribery. with regard to the validity of contract procured by bribery, there are two kinds of different views in judicial practice:valid and void. For example, in case Datang Huayin Company v. Tianhe Technology Company, the court treated the Article 8 of Law of the People’s Republic of China Against Unfair Competition as management mandatory provision and then ruled that contract procured by bribery was valid. Where in case Beijing-based Company v. XX Department of Chongqing, the court treated the Article 8 of Law of the People’s Republic of China Against Unfair Competition as effect mandatory provision and then ruled that contract was void.The second part mainly expounds the concept and the characteristics of the commercial bribery through exploring the essence of commercial bribery. And on this basis, this part defines the notion of contract procured by bribery and then distinguishes the relevant contracts. The nature of commercial bribery is unfair redistribution of commercial interests and it undermines the fair competition order. This part summarizes the features of commercial bribery based on the definition and the nature of commercial bribery such as wide range of the subject, subjective joint intention and objective illegality, so as to define the concept of the contract procured by bribery and distinguish contracts procured by bribery from bribe agreement and contracts performed by providing bribe.The third part mainly discusses the harm of commercial bribery and its management model. The social harm of commercial bribery is extremely widespread, which not only undermines the market economic order of fair competition, and hinders the effective operation of the market mechanism, but also increases transaction costs and the burden on consumers, as well as causes a huge waste of social wealth. In addition, commercial bribery is also likely to breed a variety of economic crimes, harm the investment environment at home and abroad, reduce our appeal to foreign investment, severely corrupts the social convention and contributes to the ugly phenomenon of the abuse of power. In view of this, the commercial bribery is absolutely prohibited by the laws of all countries. In terms of governance of commercial bribery, it requires not only public law, but also private law to supplement. The contract system in private law, especially the contract validity system, has a unique advantage and plays an important role in the governance of commercial bribery.The fourth part focuses on the research of the validity of the contract procured by bribery on comparative law level. From the study of comparative law, we can find that the validity of bribe agreement is almost certainly void as the content itself is illegal or contra bonos mores in both Continental Law System and Common Law system. But there is no consistent view on the validity of the contract procured by bribery. To sum up, there are five main points of view: the contract is void, validity of the contract is to be determined, the contract may be voidable, contract changes and the contract is valid.The fifth part is to review views about the validity of the contract procured by bribery. First of all, confirm the legal basis for the determination of the validity of such contracts. Then review the judgment of the validity of the illegal contract in our country. The way to determine the validity of contract procured by bribery through distinguishing administrative mandatory provision from effective mandatory provision seems flashy and hard to take a leading role in determining the validity of the illegal contract. Finally, make sure that interesting measure method is an effective way to determine the effectiveness of illegal contract.The sixth part mainly discusses the determination of the validity of the contract procured by bribery. This part criticizes the opinions like the validity of the contract to be determined, the contract may be revoked, contract changes and the contract is valid. Then the introduction of the principle of proportionality and under which adopting the interesting measure method to determine the contact procured by bribery is void. Moreover, In consideration of fighting against commercial bribery, it is reasonable and legitimate to determine the contract procured by bribery is void.