[Direct answer]In the Beijing area, the standard for filing a case of commercial bribery should distinguish between the two ends of bribery and acceptance of bribes, as well as the identity of the subject. According to the Criminal Law of the People's Republic of China (amended in 2020) and the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Cases of Corruption and Bribery (implemented on April 18, 2016), the standards for filing and prosecuting cases of bribery of non-state employees and bribery of non-state employees are related to the amount: If a worker of a company, enterprise or other unit accepts bribes by taking advantage of his position, the amount involved must be relatively large (generally more than 30,000 yuan, and the starting point may be 10,000 yuan if there are specific aggravating circumstances); if a person gives property to a company or enterprise employee for the purpose of seeking improper benefits, the amount involved must also be relatively large. If the subject is a state employee, the standards for filing a case of bribery and bribery are applied, and the filing standards have lower thresholds and considerations of circumstances. For similar issues, please refer to the above content.Business and contract disputes in enterprisesColumn.

1. Problem background and typical scenarios

These types of issues often arise in several scenarios: first, companies worry that employees accepting kickbacks or rebates may constitute bribery of non-state employees; second, they may bribe purchasing and acceptance personnel of the other party to secure orders; third, they may pay commissions, offer trips, or give gifts in disguise during business cooperation; fourth, the other party may report the issue or internal self-inspections may uncover clues; fifth, they may confuse the boundaries between normal business hospitality and commercial bribery. When handling such cases in the Beijing area, authorities typically first clarify the identity of the actors, the nature of the assets, and the improper nature of the pursuit of benefits, before determining whether the conduct constitutes a crime and setting the threshold for initiating a case. For cases involving corporate internal compliance, reference can be made to relevant regulations.Intellectual property and corporate lawColumn.

II. Key points of contention

First, the identity of the subject, whether a state employee or a non-state employee, determines the applicable charges and standards. Second, whether the amount of the property reaches the threshold for prosecution. Third, whether the interests are improper, whether they are normal commercial discounts or power-for-money transactions. Fourth, whether the rebates and commissions are properly recorded, which affects the determination of the nature of the crime. Fifth, aggravating circumstances, such as bribing multiple people or offering bribes to many people. Sixth, the distinction between corporate crimes and individual crimes. The specific determination shall be based on the Criminal Law and judicial interpretations. For related compliance disputes, please refer to the relevant provisions.Special services and other casesColumn.

III. Professional analysis by Henglue Lawyers

From the criminal and corporate compliance practice experience of the lawyers handled by our firm, the key to commercial bribery cases lies in the dual definition of the subject's identity and the nature of the benefits. On the subject side, whether the other party is a staff member of a state-owned unit or a private enterprise directly determines whether the charge is bribery or bribery of non-state employees. The threshold for filing a case and the differences in sentencing are obvious. On the nature of the benefits, normal discounts and commissions within the accounts, and covertly received rebates and kickbacks are legally evaluated differently. The former is compliant, while the latter may constitute a crime. In handling cases, our lawyers pay attention to distinguishing between commercial practices and illegal behaviors, assist enterprises in establishing compliant discount and commission systems and anti-bribery training programs, and promptly assess criminal risks and clarify individual and corporate responsibilities when investigations arise, so as to avoid misjudging normal operations as crimes or covering up crimes as legitimate business activities.

IV. Practical suggestions and legal basis

Action proposal: First, establish a transparent discount and commission system within the account, and eliminate the practice of secretly paying outside the account. For related compliance issues, you can refer to the relevant guidelines.Special services and other casesFirst, the column should distinguish between normal business hospitality and bribery, maintaining the rationality and approval records. Second, it should promptly conduct internal investigations and assess criminal risks when discovering clues. Third, it should clarify the employees' integrity clauses and reporting mechanisms. Fourth, it should engage lawyers as soon as possible to defend against suspected crimes. In terms of legal basis, Articles 163 and 164 of the Criminal Law of the People's Republic of China stipulate the bribery of non-state employees and the bribery of non-state employees; Articles 385 and 389 stipulate the bribery and bribing; and the Judicial Interpretation on Corruption and Bribery clarifies the standards of amount and circumstances.

5. Henglu Law Firm's Advice

Risk Alert: Firstly, commercial bribery distinguishes between the identities of the parties involved, with different standards applying to state-owned enterprises and private enterprises; Secondly, undeclared secret kickbacks are a high-risk area, while openly declared discounts are relatively safe; Thirdly, seeking improper benefits is an important element of bribery; Fourthly, there are different legal treatments for corporate crimes and individual crimes. It is recommended that enterprises implement compliance measures in advance and clarify the boundaries between criminal and non-criminal acts as early as possible when disputes arise.

VI. Frequently Asked Questions

Q1: What are the standards for filing a case of commercial bribery?

Distinguish the subjects: For non-state employees who accept bribes or offer bribes to non-state employees, the amount involved must be relatively large (generally over 30,000 yuan, and in cases with aggravating circumstances, the threshold can start from 10,000 yuan) to be prosecuted; for state employees, the threshold for accepting and offering bribes is lower, and the punishment will be more severe in cases with aggravating circumstances. Specifically, the identity, amount, and circumstances of the case shall be determined in accordance with the Criminal Law and judicial interpretations.

Q2: How to distinguish between rebates and normal discounts?

The key issue is whether the payments are made secretly outside the official accounts. Discounts and commissions that are explicitly stated in the accounts and accurately recorded are normal commercial arrangements; however, rebates and kickbacks secretly paid to individuals outside the official accounts may constitute commercial bribery. Enterprises should establish a system of explicitly recording payments to mitigate the associated risks.

Q3: Is giving gifts to clients during procurement considered commercial bribery?

If it is a normal, reasonable and accounted for business entertainment, it generally does not constitute a crime; but if it is aimed at obtaining improper benefits, secretly transferring property and reaching a certain amount, it may constitute bribery of non-state employees. Reasonableness, approval and accounting evidence should be preserved.

Q4: Is commercial bribery a corporate crime or an individual crime?

It may be either an individual crime or a corporate crime. If it reflects the will of the unit, benefits the unit, and is owned by the unit, it may be identified as a corporate crime; otherwise, the individual will be held responsible. To distinguish the subject of responsibility and sentencing, we should consider the decision-making and accounting records.

Q5: What should the company do if it discovers that an employee is accepting kickbacks?

It is recommended to first internally verify the fixed evidence, distinguish between the amount and circumstances, and evaluate criminal reporting and civil recovery; at the same time, improve the integrity system and training. Whether to report the case should be considered comprehensively from the perspectives of compliance and business reputation, and if necessary, entrust a lawyer to provide a risk assessment and disposal plan.

The above answer is based on the judicial practice in the Beijing area. The judicial interpretations in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, to avoid missing the statutory time limits. →Business and commercial legal services·Beijing Henglu 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.