[Direct answer]The core difference between corporate bribery and individual bribery lies in the subject and the ownership of the benefits: If a company bribes an official for improper interests, with the decision-making of the company and using the company's property to bribe, the company will be fined according to Article 393 of the Criminal Law (amended and implemented on March 1, 2024), and the directly responsible person in charge and other directly responsible persons will be sentenced to fixed-term imprisonment of not more than three years or criminal detention. If the circumstances are particularly serious, they will be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; if an individual bribes a state official for improper interests, he/she will be convicted according to Articles 389 and 390, and the maximum penalty is life imprisonment. After being involved in the case, it is necessary to fix the decision-making records and the flow of funds as soon as possible, and can first proceed through the following steps:Criminal defense and legal services for criminal case filingEvaluate the responsibility boundaries, or visitBeijing Henglue Law FirmLearn about the experience in handling similar cases.

I. Problem Background and Typical Scenarios

Construction projects, project approval, bidding and tendering, and qualification processing are high-incidence areas for bribery-related crimes. When a company's boss arranges for a "bribe" to be recorded in the company's accounts to secure a project, whether the company or the individual involved will be held accountable directly determines the scope of the people involved and the length of their prison sentences. Typical scenarios include: the company's legal representative deciding to bribe public officials in the name of business expenses or consulting fees; financial and business staff being investigated together after handling payment procedures according to instructions; executives giving gifts in the name of the company but seeking positions or personal benefits for themselves; and the company violating national regulations by offering kickbacks or handling fees to state employees. Once the classification is incorrect, it may either result in innocent employees being held criminally responsible or allow the real responsible parties to evade due prosecution by hiding behind "company actions".

II. Key points of contention

  • Subject and ownership of will: Whether the decision to offer bribes comes from the collective study of the unit or the decision of the authorized person in charge, or whether it is carried out by individuals without authorization; whether the illegal income belongs to the unit or to individuals. These two points are the core of distinguishing the two crimes, and directly determine whether to apply Article 393 or Articles 389 and 390.
  • Amount and prosecution standards: For individual bribery, those who bribe with an amount of more than 30,000 yuan shall be held accountable. For corporate bribery, the prosecution threshold is even higher. The differences in the determination of the amount and the cumulative approach will lead to completely different conclusions for the same expenditure.
  • Personal responsibility under the dual punishment system: The dual punishment system for unit bribery is to "impose a fine on the unit and sentence the responsible persons to prison". Who are the "directly responsible supervisors and other directly responsible persons"? The responsibility boundaries of financial and business personnel often become the focus of disputes. For contract and compliance issues in enterprise operations, you can refer to the relevant provisions for referenceBusiness and contract dispute services for enterprisesEvaluate them together.

III. Professional analysis by Henglue Lawyers

Henglue Lawyers' experience in handling bribery-related cases is to break down the qualitative analysis into three main lines of evidence and verify them one by one. The first is the "intent line": Retrieve shareholders' or board of directors' resolutions, meeting minutes, internal approval processes, and statements from the person in charge to determine whether the decision to bribe originated from the unit's intention or the individual's intention. Only when the decision to bribe is implemented by the unit after a collective decision or by an authorized person in charge does it meet the prerequisite for the unit to commit bribery. The second is the "funding line": Check whether the payment account is a unit account or a personal account, and verify the reimbursement items and accounting methods. Using the unit's funds and recording them as business expenses is more likely to be a unit's act. The third is the "profit line": Identify the projects undertaken, contracts signed, and profit attribution. If the illegal income obtained through bribery belongs to the unit, it is considered bribery by the unit; if it belongs to the individual, it is dealt with as individual bribery according to Article 393 of the Criminal Law. For employees listed as directly responsible persons, the focus is on whether they were aware of the decision-making content and whether they played an organizing or commanding role; for enterprises, the impact of compliance rectification and voluntary refunds on mitigating punishment will be evaluated. After clarifying these three lines, the choice of charges, the scope of responsible persons, and the sentencing levels often change accordingly. 恒略律师在办理行贿类案件中的经验，是把定性拆成三条证据主线逐一核查。第一条是意志线：调取股东会或董事会决议、会议纪要、内部审批流程与经办人陈述，判断行贿决定出自单位意志还是个人意思，经单位集体决定或由有权负责人决定实施的，才具备单位行贿的前提。第二条是资金线：核对付款账户是单位账户还是个人账户、报销名目与账务处理方式，使用单位资金并以业务费用入账的更接近单位行为。第三条是利益线：查明所承揽的项目、签订的合同与利润归属，因行贿取得的违法所得归单位的定单位行贿，归个人所有的依《刑法》第393条按个人行贿论处。对被列为直接责任人员的经办员工，重点论证其是否明知决策内容、有无组织指挥作用；对企业，则评估合规整改与主动退缴对从宽的影响。三条线厘清后，罪名的选择、责任人员的范围与量刑档次往往随之改变。

IV. Practical suggestions and legal basis

Legal Basis: Article 389 of the Criminal Law (effective from October 1, 1997, and the relevant provisions were amended by the Amendment (XII) to the Criminal Law and took effect from March 1, 2024) stipulates that offering property to state employees for the purpose of obtaining improper benefits constitutes the crime of bribery. Those who are extorted to offer property but do not obtain improper benefits do not commit bribery. Article 390 stipulates that those who commit the crime of bribery shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined. Those who commit the crime of bribery in serious circumstances shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and those who commit the crime of bribery in particularly serious circumstances shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment. Seven aggravating circumstances, such as offering bribes multiple times, offering bribes to multiple people, and offering bribes for the purpose of obtaining a promotion, are added. Those who voluntarily confess their bribery acts before being prosecuted may be given a light or mitigated punishment. Article 393 stipulates that where the circumstances of bribery by a unit are serious, the unit shall be fined, and the directly responsible person in charge and other directly responsible persons shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Where the circumstances are particularly serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. Article 31 establishes the principle of double punishment for corporate crimes. Prosecution Standards: According to 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 Graft and Bribery" (effective from April 18, 2016), those who offer bribes amounting to more than 30,000 yuan shall be prosecuted. Those who offer bribes amounting to more than 10,000 yuan but less than 30,000 yuan but who offer bribes to more than three people or seek a promotion through bribes shall also be prosecuted. For unit bribery, refer to the "Regulations on the Standards for Directly Accepting and Investigating Cases by People's Procuratorates" of the Supreme People's Procuratorate (effective from September 16, 1999), and cases involving amounts exceeding 200,000 yuan shall be investigated and prosecuted. Practical Suggestions: Enterprises should establish systems for approving and leaving records and for anti-commercial bribery compliance. When individuals are investigated, they should truthfully confess and voluntarily surrender their illegal income.

5. Henglue Law Firm's Advice

Distinguishing between unit bribery and individual bribery is not a mere semantic game. It determines whether the unit will pay a fine to settle the matter or whether specific individuals will face imprisonment of not more than ten years. Enterprises should maintain the authenticity and verifiability of expenses such as business fees, commissions, and consulting fees, and avoid using the unit's account to pay for personal benefits. Employees who handle such funds should keep approval records to prove their roles. Whether it is a unit or an individual being investigated, those who voluntarily confess to bribery before being prosecuted can receive a lighter or mitigated punishment according to the law, and the earlier the action is taken, the greater the room for maneuver. For case assessments, please contact us for further assistance.Beijing Henglu Law FirmMake an appointment for a consultation with a criminal lawyer to clarify the nature of the case and formulate a response strategy as soon as possible.

Q1: If a boss personally decides to give money to the company, is it considered bribery by the unit or bribery by the individual?

The key lies in the ownership of the will and the ownership of the benefits. If the bribery is decided by the unit through collective discussion or by the person in charge on behalf of the unit, and if the funds used are from the unit or for the unit to undertake business, it is generally regarded as bribery by the unit; if, although in the name of the company, it is actually for individuals to seek promotion or personal benefits, or if the illegal income obtained from bribery belongs to individuals, it shall be dealt with as individual bribery according to Article 393 of the Criminal Law. When making a judgment, the decision-making documents, the source of funds, the role of the person in charge, and the direction of the benefits will be comprehensively considered. Enterprises should keep evidence such as shareholders' resolutions and approval documents to prove that it is the unit's behavior, so as to avoid being upgraded to individual bribery and subject to heavier punishment.

Q2: What is the amount of bribes that will lead to criminal prosecution by the unit?

Referring to the "Regulations on the Standards for Directly Accepting and Investigating Cases by People's Procuratorates (Trial Implementation)" issued by the Supreme People's Procuratorate on September 16, 1999, cases involving bribes of more than 200,000 yuan by units should be investigated; cases involving bribes of more than 100,000 yuan but less than 200,000 yuan, but involving circumstances such as bribing for illegal benefits, bribing more than three people, bribing party and government organs and judicial organs, or causing significant losses to national and social interests, should also be prosecuted. For individual bribes, according to the 2016 interpretation of the two supreme courts, those involving amounts of more than 30,000 yuan should be held accountable. For cases where the amount is close to the threshold, the cumulative amount and the identification of special circumstances are the key points of defense.

Q3: If a unit offers bribes, will ordinary employees be held criminally responsible?

The unit that bribes others is subject to a dual-punishment system, but the personal responsibility is limited to "directly responsible supervisors and other directly responsible personnel" (according to Articles 31 and 393 of the Criminal Law), that is, the persons in charge of organizing, deciding on, and implementing the bribery, as well as the direct staff involved. Ordinary employees who only handle payment procedures according to the instructions of their superiors, do not know the purpose of the payment, and are not involved in decision-making are generally not treated as criminals in practice, but may need to cooperate with the investigation. Employees should pay attention to preserving evidence of their roles, such as approval processes and chat records; if they are indeed listed as responsible persons, they should hire a lawyer as soon as possible to prove their level of knowledge and the extent of their involvement, in order to strive for non-prosecution or lenient treatment.

Q4: If a person actively confesses their bribery before being prosecuted, can they still receive a lenient punishment?

Yes. According to Article 390 of the Criminal Law, if the bribe-giver voluntarily confesses to the bribery act before being prosecuted, he may be given a mitigated or reduced punishment; if the crime is relatively minor, plays a key role in solving major cases, or has significant meritorious service, he may be given a mitigated or exempted punishment. It should be noted that after the Amendment (XII) to the Criminal Law came into effect on March 1, 2024, seven types of circumstances, including repeated bribery, bribery of multiple people, bribery for seeking promotion or adjustment of position, and bribery of supervision and judicial staff, will be subject to heavier punishment. When both mitigating and aggravating circumstances exist, the court will comprehensively evaluate them. Confessing truthfully and cooperating with the return of bribes at the first time before being prosecuted is a key action to strive for a mitigated punishment.

Q5: If the company is suspected of offering bribes to public officials and is under investigation, what should be done first?

First, secure the evidence and then discuss countermeasures. Immediately sort out and preserve board of directors or shareholders' resolutions, internal approval documents, fund approval records, and the list of persons in charge, etc. to clarify the subject and scope of bribery decision-making and execution; at the same time, entrust a criminal lawyer to intervene and evaluate the qualitative space of corporate bribery and individual bribery, and determine the scope of the involved personnel and the standard of amount determination. During the investigation, cooperate with the investigating authorities, truthfully explain the situation, actively return the illegal income and pay the fine in advance, and strive for leniency. It is strictly prohibited to delete records or standardize statements. Such actions may be regarded as resisting the investigation and will be subject to more severe punishment. It is far better to have a lawyer check and supervise the situation in advance than to make up for it afterwards.

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