[Direct answer]In the Beijing area, a compliance system is established from four aspects: "system, process, finance, and supervision". Commercial bribery refers to the act of operators secretly giving or receiving money and other improper benefits in order to obtain business opportunities or competitive advantages. If enterprises manage poorly, they may face administrative penalties, civil compensation, and even criminal liability, and the relevant responsible persons will also be held accountable. To prevent commercial bribery, it is recommended to do the following four things: First, improve the system and formulate anti-commercial bribery compliance systems and employee manuals, clearly prohibiting prohibited behaviors and the consequences of violations; Second, control high-risk processes, standardize sales, procurement, bidding and tendering, commissions and discounts, gifts and hospitality, sponsorships and donations, and prohibit secretly giving or receiving benefits outside the books; Third, strengthen financial and invoice management, eliminate false invoices, off-book accounts, and "petty cash", and ensure that the accounts match the actual situation and are traceable; Fourth, strengthen training, commitments, and supervision, conduct compliance training, sign integrity commitments, set up reporting channels and internal investigation mechanisms, and conduct due diligence on cooperation partners. Discover and deal with problems in a timely manner, and actively cooperate with investigations when necessary to effectively reduce risks.

I. Problem Background and Typical Scenarios

Business bribery is a major compliance risk in corporate operations. Typical scenarios include: sales personnel offering "benefits" to the counterpart's agents to secure orders, disguising bribes as consulting fees or advisory charges; purchasing personnel accepting kickbacks from suppliers; and companies using fake invoices to cash out funds for improper spending. Such actions may result in administrative penalties, affect bidding and credit ratings, and in severe cases, lead to criminal charges.

II. Key points of contention

First, the boundary between commercial bribery and normal business transactions and discount commissions; Second, the division of unit responsibility and individual responsibility; Third, the identification and control of high-risk links; Fourth, the standardization of financial documents and accounts; Fifth, the implementation and supervision of the compliance system. In practice, the authenticity of accounts and standardized processes are the core issues.

III. Professional analysis by Henglue Law Firm

The first layer is to identify the risk of bribery. The core of commercial bribery is "giving or receiving money or property in secret for the purpose of seeking improper benefits". Normal discounts and commissions should be accurately recorded and invoiced; if money or property are secretly given or received outside the accounts, or interests are transferred under the guise of consulting fees, advisory fees, sponsorships, travel, gifts, etc., it may constitute commercial bribery. The second layer is to control key links. Sales and procurement, bidding and tendering, channels and distribution, market promotion, and government affairs are high-risk areas. It is necessary to establish approval, traceability, and review mechanisms, clarify gift and hospitality standards, and prohibit the transfer of improper interests under any pretext. The third layer is financial and invoice compliance. It is necessary to strengthen invoice and account management to ensure the authenticity of business transactions, the legality of invoices, and the consistency between accounts and actual transactions, and to prevent the cashing of fake invoices and off-book accounts. Financial compliance is the foundation of compliance and also important evidence in responding to investigations. The fourth layer is personnel and training. Through systems, training, and commitments, we can enhance employees' compliance awareness, establish reporting and internal investigation mechanisms, and deal with violations in a timely manner. We should also conduct due diligence on partners to avoid bribery being carried out through third parties. The fifth layer is responsibility and response. If a company engages in commercial bribery, it may bear administrative, civil, and even criminal liabilities; senior executives and direct responsible persons may also be held accountable. When problems are discovered, it is necessary to fix evidence, assess risks, rectify them in a timely manner, and respond in accordance with the law. Henglue Lawyers' Tip: A compliance system cannot just remain on paper. The key lies in implementing it into business processes, financial invoices, and daily supervision, forming an executable, traceable, and accountable mechanism.

IV. Practical suggestions and legal basis

The first step is to formulate and publish an anti-commercial bribery compliance system, clearly prohibiting sexual misconduct and defining responsibilities; the second step is to sort out and regulate high-risk processes such as sales, procurement, bidding, commission discounts, and gift hospitality; the third step is to strengthen financial and invoice management, prohibiting off-book accounts and fake invoices; the fourth step is to conduct training, sign commitments, and establish reporting and internal investigation mechanisms; the fifth step is to conduct due diligence on cooperation partners, identify and rectify problems in a timely manner, and respond to them in accordance with the law. The main legal basis includes the provisions on commercial bribery in the Anti-Unfair Competition Law of the People's Republic of China; the relevant provisions on bribery, accepting bribes, and corporate crimes in the Criminal Law of the People's Republic of China; and the provisions on the fiduciary and diligent obligations of directors, supervisors, and senior executives in the Company Law of the People's Republic of China. Specific applications shall be subject to the currently effective provisions.

5. Henglue Law Firm's Reminder

Three key points to prevent commercial bribery: clearly define systems and establish rules for sales, procurement, bidding, and hospitality; ensure the authenticity of invoices and accounts; and implement training and reporting mechanisms. Business partners should also conduct due diligence and take prompt remedial measures in case of incidents. For issues related to corporate compliance and criminal risks, please contact us for further assistance.Special servicesObtain the overall solution, which can be combined with contract and transaction securityBusiness and contract disputes in enterprisesFor reference, you can check the sections related to corporate compliance and system constructionIntellectual property protection and corporate lawFor this column, you can consult us about how to deal with criminal risksCriminal defenseTeam.

VI. Frequently Asked Questions

Q1: Does giving rebates to customers count as commercial bribery?

It's very likely. If you secretly provide financial or other improper benefits to other units or individuals to gain business opportunities or competitive advantages, it may constitute commercial bribery. Discounts and commissions that are properly recorded in the accounts and issued with legal receipts, and comply with regulations, are usually normal commercial practices; however, "kickbacks" given secretly outside the accounts are illegal, and in serious cases, they may even constitute a criminal offense.

Q2: What aspects should enterprises focus on to prevent commercial bribery?

It can be approached from four aspects: system, process, finance, and supervision. Specifically, we need to perfect the compliance system and employee handbook, standardize high-risk processes such as sales, procurement, and bidding, strengthen invoice and account management, conduct training, make commitments, and conduct internal investigations. Additionally, we should conduct due diligence on our partners. The goal is to establish an executable, traceable, and accountable mechanism.

Q3: Are consultancy fees and advisory fees also considered bribes?

It depends on whether it's genuine. If there are indeed genuine services, contracts and results, and the prices are fair and properly accounted for, it's usually a normal business transaction. However, if improper benefits are transferred under the guise of consultant fees or consulting fees, without genuine services or with prices that are obviously abnormal, it may be regarded as a disguised form of commercial bribery, and such methods should be avoided.

Q4: If the company engages in commercial bribery, who should be held accountable?

Both units and individuals may be held accountable. Enterprises may bear administrative responsibility, civil liability, and even criminal responsibility; those directly in charge and other directly responsible personnel may also be held accountable according to law. Establishing and implementing a compliance system and timely detecting and rectifying problems can help reduce liability. After an incident occurs, it is necessary to secure evidence, assess risks, and respond in accordance with the law.

Q5: If our business partner offers bribes, do we, as a company, have any responsibility in this regard?

They may be implicated. If bribes are carried out through third parties (such as agents, distributors, or intermediaries), and the enterprise is aware of, instigates, or fails to fulfill its management obligations, it may bear corresponding responsibilities. Therefore, it is necessary to conduct due diligence on the cooperation partners, stipulate compliance and anti-bribery clauses in the contract, and require them to comply with these clauses to avoid risks to the enterprise caused by the actions of third parties.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Specialised services - Legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.