Interim Provisions on Banning Commercial Bribery

 2018-07-31  21


· Document Number:Order No.60 of the State Administration for Industry and Commerce of the People’s Republic of China

· Area of Law: Anti-Unfair Competition

· Level of Authority: Departmental Rules

· Date issued:11-15-1996

· Effective Date:11-15-1996

· Issuing Authority: State Administration for Industry & Commerce

· Status: Effective

 

Order of the State Administration for Industry and Commerce of the People's Republic of China
(No.60)
The Interim Provisions on Banning Commercial Bribery, which were adopted upon deliberation at the executive meeting of the State Administration for Industry and Commerce, are hereby promulgated, and shall come into force on the date of promulgation.
Director: Wang Zhongfu
November 15, 1996
Interim Provisions on Banning Commercial Bribery
Article 1 To prohibit commercial bribery and maintain fair competition, these Provisions are formulated according to the Anti-unfair Competition Law of the People's Republic of China (hereinafter referred to as “Anti-unfair Competition Law”).
Article 2 Business operators shall not sell or purchase commodities by means of commercial bribery, in violation of Article 8 of the Anti-unfair Competition Law.
For the purpose of these Provisions, the term “commercial bribery” refers to a business operator's bribery of another entity or individual with property or by other means in order to sell or purchase commodities.
The term “property” as mentioned in the preceding paragraph refers to cash and material objects, including property given by a business operator to another entity or individual in the name of promotion fee, publicity fee, sponsorship fee, scientific research fee, service charge, consulting fee, commissions, reimbursed expenses, etc. in order to sell or purchase commodities.
The term “other means” as mentioned in paragraph 2 hereof refers to any means other than giving property, such as offering domestic or international tours or surveys in various names. .
Article 3 Commercial bribery committed by any employee of a business operator for selling or purchasing commodities for the operator shall be regarded as the operator's act.
Article 4 No entity or individual may accept or ask for bribes when selling or purchasing commodities.
Article 5 A business operator giving any off-book kickback to another entity or individual in secret shall be regarded as offering a bribe; and an entity or individual accepting any off-book kickback in secret shall be regarded as accepting a bribe.
The term “kickback” mentioned in these Provisions refers to an amount refunded by a business operator in secret to another entity or individual in a certain proportion of the price of commodities with off-book cash or material objects or by other means, when selling commodities.
The terms “off-book” and “in secret” mentioned in these Provisions mean that no clear and true entries are made according to the financial and accounting rules in the financial accounts which, as maintained according to law, reflect the production and operation activities or the revenue and expenditure of administrative funds, including no entries in the financial accounts, transfer to other financial accounts or false entries in accounts.
Article 6 When selling commodities, a business operator may expressly offer a discount to another party. The discount offered by the operator to another party must be truthfully entered into the accounts; and the discount accepted by a business operator or another entity must also be truthfully entered into the accounts.
The term “discount” mentioned in these Provisions, i.e. a reduction of price in the purchase and sale of commodities, refers to a price preference which a business operator may expressly offer to another party when selling commodities and which shall be truthfully entered into the accounts, including discounts offered in the following two ways: deducting a certain proportion of the price of commodities at the time of payment or reimbursing a certain proportion of the price of commodities after payment.
The terms “expressly” and “entered into the accounts” mentioned in these Provisions mean that according to the amount and the payment method under a contract, clear and true entries are made in the financial accounts which, as legally maintained, reflect the production and operation activities or revenue and expenditure of administrative funds according to the financial and accounting rules.
Article 7 When selling or purchasing commodities, a business operator may expressly offer a commission to an intermediary. The commission offered by the operator must be truthfully entered into the accounts; and the commission accepted by an intermediary must also be truthfully entered into the accounts.
The term “commission” mentioned in these Provisions refers to the compensation paid by a business operator to an intermediary with legal business qualifications which has provided services for the operator during market transactions.
Article 8 A business operator shall not give any cash or material object as gift to another entity or individual during a commodity transaction, except an advertising gift of a small value which is offered as a common commercial practice.
Who violates the preceding paragraph shall be regarded as committing a commercial bribery.
Article 9 Where a business operator sells or purchases commodities by means of bribery, in violation of these Provisions, the competent administrative department for industry and commerce shall, pursuant to Article 22 of the Anti-unfair Competition Law, impose a fine of not less than 10,000 yuan but not more than 200,000 yuan according to the actual circumstances, and confiscate the illegal income if any; and if any crime is constituted, transfer the case to the judicial organ for criminal investigation.
Where a relevant entity or individual accepts a bribe when purchasing or selling commodities, the competent administrative department for industry and commerce shall impose a punishment pursuant to the preceding paragraph; and, if any crime is constituted, transfer the case to the judicial organ for criminal investigation.
Article 10 The administrative departments for industry and commerce at and above the county level shall be responsible for the supervisory inspection in respect of commercial bribery behaviors.
The administrative departments for industry and commerce may investigate and handle the acts of offering and taking bribes simultaneously when conducting supervisory inspection in respect of commercial bribery behaviors.
Article 11 Where a business operator also violates other regulations on the administration of industry and commerce when selling or purchasing commodities by means of bribery, the bribery and other violations shall be punished concurrently.
Article 12 These Provisions shall come into force on the date of promulgation.