[Direct answer]In the Beijing area, the prevention and control of criminal risks of commercial bribery lies in early identification of the nature of the act, fixing compliance evidence, and responding to reports according to law. According to Article 163 of the Criminal Law of the People's Republic of China, if a staff member of a company, enterprise or other unit accepts property for the benefit of others by taking advantage of his position, he shall be guilty of the crime of bribery of non-state employees; Article 164 applies to the crime of bribing non-state employees. In terms of prevention and control, enterprises should establish compliance boundaries and approval records for gifts, rebates, and hospitality, distinguishing between business practices and the transfer of interests. Once a report is received, they should promptly sort out the accounts and communication records, clarify whether it is a unit's act or an individual's act, and whether it meets the standards for prosecution, and hire professional lawyers as soon as possible to avoid misjudging the nature of the crime and expanding risks. For more details, please refer to the following link:Criminal defense and criminal case filing services.

1. Problem background and typical scenarios

Business bribery criminal risks are often found in procurement, sales, bidding and tendering, and channel cooperation. Typical scenarios include: employees secretly accepting kickbacks from suppliers, transferring benefits under the guise of "consulting fees" and "service fees"; companies paying bribes to key personnel to secure orders; false transactions between related companies to transfer funds; and former executives taking away customer resources and engaging in suspected bribery. Such behaviors are often exposed during internal audits, whistleblowing, or the investigation of related cases. Many companies usually lack compliance records, and it becomes difficult for them to prove their innocence after the incident. For cases involving corporate contracts and transactions, it may be necessary to combine the following measures:Business and contract dispute resolution services for enterprisesAnalyze the transaction background.

II. Key points of contention

The focus of the controversy lies in four aspects. Firstly, the nature of the act: whether it constitutes a corporate crime or an individual act, which directly affects the subject of responsibility and sentencing. Secondly, the boundaries of the charges: the subject and object of the crime of bribery of non-state employees and the crime of bribery, and the crime of bribing non-state employees and the crime of corporate bribery are different, with significant differences in the nature of the charges. Thirdly, the amount and circumstances: whether it meets the standard for prosecution, and whether there are mitigating factors such as voluntary surrender and repayment of bribes. Fourthly, the legality of the evidence: whether the acquisition of accounts, communications, and statements is in accordance with the law, which directly affects whether it can be used as evidence for sentencing. For cases involving corporate internal compliance, reference can be made to relevant provisions.Intellectual property protection and corporate legal servicesEstablish a defense line.

III. Professional analysis by Hengluo Law Firm

Based on a major criminal case handled by our firm, it can be seen that professional intervention has a crucial impact on the determination of the nature of the crime. On June 16, 2024, after a dispute with Zhao Gang and others at the mixing station, the defendant, Zhang Daqiang, accelerated his car and rammed into the laboratory, resulting in the instantaneous death of Zhao Gang and injuries to Zhang Bin and Li Yuanzheng. The victim's wife entrusted Liu Liqiang, a lawyer from Beijing Henglu Law Firm, to represent her in the accompanying civil litigation. Through in-depth review of the case file, the lawyer refuted the defendant's defense arguments regarding subjective intent, voluntary surrender, the victim's fault, and the nature of the crime, and advocated for the determination of the crime as intentional homicide and imposing a heavier punishment. The core controversy lies in whether driving a car to kill someone should be classified as intentional homicide or endangering public safety by dangerous means, and whether the voluntary surrender constitutes a valid defense. The court ultimately adopted the lawyer's opinion, sentencing Zhang Daqiang to death for intentional homicide, and supported the victim's family's request for compensation. This case was handled by Beijing Henglu Law Firm.Liu LiqiangThe attorney (practice license number: 11101200910454358, subject to the certificate issued by the judicial administrative organ) acts as the agent. The defense experience in major criminal cases shows that whether the qualification is accurate and the evidence is solid directly determines the sentencing level. Returning to the prevention and control of commercial bribery risks, once an enterprise is reported, it also needs to clarify the nature of the act and fix the evidence of compliance and confessions at the early stage of the investigation to avoid misjudging the nature and expanding the risks. The defense of the relevant involved personnel can be connected to the similar case-handling experience of Shang Jiangpeng and Zhu Guiying attorneys.

IV. Practical suggestions and legal basis

The core basis is Article 163 of the Criminal Law of the People's Republic of China (amended on December 26, 2020) (Bribe-taking by Non-State Workers) and Article 164 (Bribing Non-State Workers); as well as the provisions of the Criminal Procedure Law of the People's Republic of China (amended on October 26, 2018) regarding case filing, investigation, and the involvement of defense attorneys; the specific criminalization amount standards refer to the case filing and prosecution provisions of relevant judicial interpretations. Practical suggestions: First, establish a compliance system for gifts, rebates, and hospitality and keep records of approval; Second, promptly seal accounts and electronic data upon discovering abnormalities to avoid evidence loss; Third, distinguish between corporate actions and individual actions, and the boundaries between crimes and non-crimes; Fourth, hire a lawyer as soon as possible after being reported, meet with investigators and submit legal opinions during the investigation stage, and fix mitigating circumstances. Other procedures can be assisted by legal professionals.Special services and other case servicesAnalysis and judgment.

5. Henglu Law Firm's Reminder

The key to preventing and controlling commercial bribery lies in "compliance beforehand and orderly handling of incidents". Enterprises should incorporate compliance boundaries into their systems, implement them through approval and documentation processes, rather than relying on remedial measures after the fact. Once a report is received, it is crucial not to panic and destroy or tamper with accounting records, as this will aggravate their legal liability. The determination of the nature of the case—whether it involves a unit or an individual, whether it constitutes bribery of non-state employees, and whether it meets the standards for prosecution—directly affects the legal consequences. It is recommended to engage professional lawyers as soon as possible to clarify the nature of the case and establish mitigating circumstances in accordance with the law, in order to avoid exacerbating risks during the early stages of the investigation. For assistance, please contact us viaCriminal defense and criminal case filing servicesContact the team.

VI. Frequently Asked Questions

Q1: If a company is reported for commercial bribery, will it necessarily constitute a crime or result in a lawsuit loss?

Not necessarily. Whether it constitutes a crime depends on the nature of the act, the identity of the subject, the amount and circumstances of the benefits transferred, and whether it meets the standards for initiating criminal prosecution. If it is a normal commercial discount, a discount explicitly recorded in the accounts, or hospitality that conforms to industry practices, it is generally not considered commercial bribery; if it is indeed the secret giving or receiving of property outside the accounts for the benefit of others, it may constitute a criminal offense. The differences in the characterization of corporate acts and individual acts, and between non-state employees and public officials, also directly affect the charges and sentencing. Whether one can be exempted from liability or receive a light sentence depends on the evidence and circumstances. A professional lawyer will evaluate the case objectively rather than make empty promises. Do not believe in the rhetoric of "guaranteed victory".

Q2: When a company conducts an investigation into the risk of commercial bribery, what evidence do they need to prepare?

The core materials include: financial ledgers and bank statements (to prove the flow of funds), purchase and sales contracts and approval documents, expense reimbursement vouchers for gifts and hospitality, communication and email records between employees and counterparties, contract texts for related-party transactions and false services, as well as internal reports and audit conclusions. The evidence should be organized around the following aspects: "whether there is interest transfer, who the principal is, the amount involved, and whether it is clearly recorded in the accounts." It is crucial to establish compliance records on a regular basis, and after an incident occurs, electronic data should be promptly sealed to prevent tampering. The more complete the materials are, the better they can distinguish between normal operations and criminal risks, providing a basis for lawyers to determine the nature of the case.

Q3: How much does it cost to hire a lawyer for criminal compliance and defense against commercial bribery?

The fees for criminal compliance and defense are related to the stage of the case, its complexity, the amount in dispute, and the lawyer's qualifications. They are usually charged on a per-case or phased basis, with the specific fees specified in the engagement contract, and there is no unified government pricing. According to relevant regulations, risk-based fees are prohibited in criminal litigation, so clients should not hire lawyers on a "pay-for-success" basis. It is recommended that enterprises clarify the scope of fees, stages, and caps before entrusting a lawyer, and require law firms to provide written contracts and fee receipts. For those who claim to "guarantee non-indictment" or "guarantee acquittal" and demand high fees, clients should remain vigilant and adhere to the path of defending and complying with the law.

Q4: How long does it usually take for a commercial bribery case to go from being reported to reaching a conclusion?

The timeframe depends on the procedures and the circumstances of the case. During the investigation stage, according to the Criminal Procedure Law, the maximum period of investigation and detention for a criminal suspect after arrest is generally no more than two months, and the period may be extended according to law for complex cases; the transfer for examination and prosecution and trial are counted separately. If the facts are clear and the amount is definite, the period is relatively controllable; if it involves multiple transactions, multiple personnel, or requires judicial audits, the period will be significantly extended. After the judgment takes effect, the case may also enter the execution stage. Overall, it often takes several months to more than a year from the reporting to the first-instance judgment. It is recommended that enterprises get involved in the investigation at an early stage to fix mitigating circumstances and strive for a more favorable outcome.

Q5: If I discover potential risks of commercial bribery, what should I do first?

It is recommended to follow a four-step approach: First, immediately launch an internal investigation and seal relevant financial records, contracts, and electronic data to prevent evidence from being lost or tampered with; Second, sort out the flow of funds and the approval chain, and initially distinguish between normal operations and benefit transfer, as well as institutional actions and individual actions; Third, for matters that meet the prosecution standards or are high-risk, hire professional criminal lawyers as soon as possible to participate in the investigation according to the law, and fix mitigating circumstances such as voluntary surrender or refund; Fourth, improve the compliance system, deal with responsible personnel in accordance with regulations, and, if necessary, actively explain the situation to the investigating authorities and strive for lenient treatment. Throughout the process, retain all documents and records to avoid any destruction of evidence.

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. →Criminal defense legal services·Attorney Liu Liqiang·Beijing Hengluo Law Firm

Disclaimer: This article is compiled based on current laws and regulations and publicly available adjudication rules, and is provided 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 a dispute arises, please consult a practicing lawyer in a timely manner.