On December 29, 2023, the 7th Session of the Standing Committee of the 14th National People's Congress passed the "Amendment (12) to the Criminal Law of the People's Republic of China", which has a total of 7 substantive contents, focusing on the crime of obstructing the management order of companies and enterprises in Section 3 of Chapter 3 of the Specific Provisions of the Criminal Law and the crime of bribery in Chapter 8 of the Specific Provisions of the Criminal Law. This amendment to the Criminal Law is the second update of China's Criminal Law after a lapse of three years, which represents the latest criminal legislative policy orientation of the legislature, and will also have a significant impact on judicial practice in the future, so it should be paid attention to.
I. The amendment to the crime of obstructing the management order of companies and enterprises has achieved a major breakthrough in the protection of the criminal law of non-state-owned companies and enterprises.
In Chapter III of the Specific Provisions of the Criminal Law, in the section on the crime of managing order in companies and enterprises, the amendment amends the crime of illegally operating the same type of business in Article 165 of the current Criminal Law, the crime of illegal profit-making by relatives and friends in Article 166, and the crime of discounting shares at a low price and state-owned assets in Article 169 of the current Criminal Law. Specifically, on the one hand, the amendment fine-tunes the existing crimes, such as the addition of supervisors and senior managers to the crime of illegal operation of similar businesses;The crime of illegally profiteering for relatives and friends adds objective modes of conduct in the provision and receipt of services;On the other hand, the amendment expands the scope of application of the three crimes from the operation and management of state-owned companies and enterprises to the operation and management of all companies and enterprises. After the amendment takes effect, the staff of private companies, enterprises, mixed-ownership companies and enterprises, foreign-funded companies and enterprises, in the operation and management of the company's enterprises, violate the provisions of laws and administrative regulations, illegally operate similar businesses, illegally make profits for relatives and friends, convert shares at low prices, and ** enterprise assets, which may also constitute criminal offenses.
This amendment to the Criminal Law is undoubtedly a major breakthrough in the criminal law protection of the rights and interests of enterprises in criminal legislation. The current criminal law only regulates the behavior of state-owned companies and enterprise staff members who infringe on the property rights and interests of companies and enterprises and seek illegal personal interests in the course of operation and management, which also leads to the current criminal justice practice of a large number of senior executives and staff members of private enterprises and other non-state-owned enterprises wantonly infringing on the interests of enterprises and seeking huge personal illegal benefits, but they cannot be investigated for criminal responsibility. After the current amendment to the Criminal Law comes into effect, the continuation of such acts may constitute a criminal offense, and the property rights and interests of non-state-owned companies and enterprises will be more comprehensively protected by the Criminal Law.
II. The amendment to the crime of bribery implements the criminal policy concept of blending leniency and severity, while increasing the statutory penalties for the crime of unit, the crime of offering bribes to a unit, and the crime of offering bribes to a unit, while appropriately reducing the severity of the assessment of criminal responsibility for the crime of bribery.
In Chapter 8 of the Criminal Law, the Crime of Bribery is amended to amend Article 387 of the Criminal Law, Article 390 of the Criminal Law, Article 391 of the Criminal Law.
The amendment adjusts the statutory penalties for bribery crimes committed by units, changing the original first level of statutory penalties for the crime of ** by units, the crime of offering bribes by units, and the crimes of offering bribes by units to two levels, and through the setting of the second level of statutory penalties, the statutory penalties for bribery crimes committed by units have been increased as a whole.
At the same time, the amendment does not blindly increase the statutory penalty, but in the amendment to the crime of bribery, the first two levels of statutory penalties for the crime of bribery, "fixed-term imprisonment of not more than five years or short-term detention and a fine" and "fixed-term imprisonment of not less than five years but not more than ten years and a fine" are amended to "fixed-term imprisonment of not less than three years or short-term detention and a concurrent fine" and "fixed-term imprisonment of not less than three years but not more than ten years and a concurrent fine", thus reducing the severity of the criminal liability assessment of the crime of bribery as a whole. At the same time, in order to avoid over-indulgence in the crime of bribery with special and serious circumstances, the amendment also adds seven types of bribery crimes with heavier punishments, implementing the criminal policy concept of blending leniency and severity.
3. The present amendment implements the principle of equality in criminal law and the criminal policy of blending leniency and severity.
The principle of equality and the balance of leniency and severity are the two main lines of this amendment to the Criminal Law.
From the perspective of the principle of equality, there has long been a differentiated binary division in the criminal law sub-rules and crime system in China. For example, the differential protection of state-owned assets and non-state-owned assets, the former has a wider scope of criminal law protection;Another example is the distinction between the evaluation of criminal responsibility for crimes committed by units and crimes committed by natural persons, and the assessment of criminal responsibility of a unit when committing a crime of the same nature is significantly lower than that of a natural person when it is committed. This binary division had a certain degree of rationality in the early social background, but with the changes in social and economic development, it began to violate the principle of equality in criminal law. Therefore, this amendment to the Criminal Law extends the special crimes that are traditionally exclusive to state-owned companies and enterprises to all types of companies and enterprises, and at the same time, increases the statutory penalty for the crime of bribery by units, so that it tends to be consistent with the evaluation of criminal liability for the crime of bribery by natural persons.
From the perspective of the criminal policy of blending leniency and severity, bribery has always been a key criminal field in China's criminal field. However, based on the criminal policy of blending leniency and severity, there should be relative leniency even in the field of crime that is severely cracked down. Among the crimes of bribery, the crime of ** and the crime of offering bribes are committed in the opposite direction, and compared with the crime of bribery, the degree of harm of the crime is significantly greater, which is the focus of criminal crackdown.
And in practice, whether the bribe giver can take the initiative to confess the facts of the crime of bribery plays an important role in breaking through and detecting the first crime. This amendment lowers the first two levels of statutory penalties for the crime of bribery, reducing the boundary of the first two levels of statutory penalties from five years to three years, which not only lowers the statutory penalty for the crime of bribery, but also significantly increases the space for the application of suspended sentences for the crime of bribery, and also helps the bribe giver to actively cooperate with the judicial organs, which is generally conducive to the effect of criminal sanctions for the crime of bribery.
Amendment (12) to the Criminal Law of the People's Republic of China
December 29, 2023.
The 14th National People's Congress.
Adopted at the seventh meeting of the Standing Committee).
1. Add a paragraph to Criminal Law article 165 as the second paragraph, and amend this article to read: "Where directors, supervisors, or senior managers of state-owned companies or enterprises take advantage of their positions to operate their own business or for others a business similar to that of the company or enterprise they work for, and obtain illegal benefits, and the amount is huge, they are to be sentenced to up to three years imprisonment or short-term detention and/or a fine;where the amount involved is especially huge, the sentence is between three and seven years imprisonment and a concurrent fine.
Where directors, supervisors, or senior managers of other companies or enterprises violate the provisions of laws or administrative regulations by carrying out the conduct described in the preceding paragraph, causing major losses to the interests of the company or enterprise, they shall be punished in accordance with the provisions of the preceding paragraph. ”
2. Add a paragraph to Criminal Law article 166 as the second paragraph, and amend this article to read: "In any of the following circumstances, where staff of state-owned companies, enterprises, or public institutions take advantage of their positions to facilitate their positions, causing major losses to national interests, they are to be sentenced to up to three years imprisonment or short-term detention and/or a fine;and where the interests of the state suffer especially heavy losses, a sentence of between three and seven years imprisonment and a concurrent fine is to be given
1) Leaving the profit-making business of the unit to their relatives and friends to operate;
2) Purchasing goods or receiving services from units operated and managed by one's relatives and friends with a significantly higher level than the market, or selling goods or providing services to units operated and managed by one's relatives and friends with a significantly lower market level;
3) Purchasing or accepting substandard goods or services from units operated and managed by one's relatives and friends.
Where the staff of other companies or enterprises violate the provisions of laws or administrative regulations by carrying out the conduct described in the preceding paragraph, causing major losses to the interests of the company or enterprise, punishment is to be given in accordance with the provisions of the preceding paragraph. ”
3. Add a paragraph to Criminal Law article 169 as the second paragraph, and amend this article to read: "Where a person in charge of a state-owned company or enterprise or the department directly responsible for the competent department at a higher level engages in favoritism and twists the law by depreciating state-owned assets at a low price into shares or at a low price, causing major losses to national interests, a sentence of up to three years imprisonment or short-term detention is to be given;and where the interests of the state are particularly seriously harmed, a sentence of between three and seven years imprisonment is to be given.
Where the directly responsible managers of other companies or enterprises engage in favoritism and malpractice by converting the company's or enterprise's assets into shares at a low price or at a low price, causing major losses to the company's or enterprise's interests, they shall be punished in accordance with the provisions of the preceding paragraph. ”
IV. Modify the first paragraph of Criminal Law article 387 to read: "Where state organs, state-owned companies, enterprises, public institutions, or people's organizations solicit or illegally accept other people's property to seek benefits for others, and the circumstances are serious, the unit is to be fined, and the directly responsible managers and other directly responsible personnel are to be sentenced to up to three years imprisonment or short-term detention;where the circumstances are especially serious, the sentence is between three and ten years imprisonment. ”
5. Amend Criminal Law article 390 to read: "Those who commit the crime of offering bribes are sentenced to up to three years imprisonment or short-term detention and a concurrent fine;Whoever seeks improper benefits through bribery, where the circumstances are serious, or causes major losses to national interests, is to be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and a concurrent fine;where the circumstances are especially serious, or cause especially heavy harm to national interests, a sentence of 10 or more years imprisonment or indefinite imprisonment is to be given, and a concurrent fine or confiscation of property.
In any of the following circumstances, a heavier punishment is given:
1) Repeatedly offering bribes or bribes to multiple people;
2) Bribery by state functionaries;
3) Offering bribes in key national projects or major projects;
4) Offering bribes for the purpose of seeking a position, rank promotion, or adjustment;
5) Offering bribes to supervision, administrative law enforcement, or judicial personnel;
6) Offering bribes and carrying out illegal or criminal activities in areas such as ecology and the environment, finance, production safety, food and drugs, disaster prevention and relief, social security, education, and medical care;
7) Using unlawful gains for bribery.
Where the bribe giver voluntarily confesses the bribery before being prosecuted, the punishment may be mitigated or commuted. Of these, where the crime is relatively minor, where it plays a key role in the breakthrough in the investigation or the detection of a major case, or where there is a major meritorious service, punishment may be commuted or waived. ”
VI. Amend the first paragraph of Criminal Law article 391 to read: "Whoever gives property to state organs, state-owned companies, enterprises, public institutions, or people's organizations in order to seek improper benefits, or violates state provisions by giving kickbacks or fees in various names in the course of economic dealings, is to be sentenced to up to three years imprisonment or short-term detention and a concurrent fine;where the circumstances are serious, a sentence of between three and seven years imprisonment and a concurrent fine is to be given. ”
VII. Modify Criminal Law article 393 to read: "Where a unit offers bribes for the purpose of seeking improper benefits, or violates state provisions by giving kickbacks or handling fees to state employees, and the circumstances are serious, the unit is to be fined, and the directly responsible managers and other directly responsible personnel are to be sentenced to up to three years imprisonment or short-term detention and a concurrent fine;where the circumstances are especially serious, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given. Where unlawful gains obtained through bribery are owned by individuals, they are to be convicted and punished in accordance with the provisions of articles 389 and 390 of this Law. ”
8. This Amendment shall come into force on March 1, 2024.