Comparison of Crimes of Bribery in Mainland China, Hong Kong SAR and the United States. (Translation provided by the writers)

Paper by Professor ZHAO Bingzhi, Dean, College for Criminal Law Science and School of Law, Beijing Normal University*; and Dr LIU Ke, Lecturer, College for Criminal Law Science, Beijing Normal University**, Mainland China Comparison of Crimes of Bribery in Mainland China, Hong Kong SAR and the United States (Translation provided by the writers) I. Preface Bribery is a crime beyond the history and the borders, and to control bribery as much as possible is the common mission of all human societies. Due to varied political philosophy, legal traditions and social institutions between countries and regions, it is different in the system of criminal charges, constitutive elements of the crime and criminal responsibility with regard to bribery crime. This article intends to make a comparison of anti-bribery criminal laws in Mainland China, Hong Kong SAR and the United States. II. Overview of anti-bribery criminal legislation in Mainland China, Hong Kong SAR and the United States i. Mainland China In 1952 new people s regime promulgated the Punishment of Corruption Ordinance, which states: Any person in state organs, enterprises, schools and their subsidiary bodies, who appropriates, steals, swindles public money or property or demand property from others or practices jobbery shall be guilty of embezzlement. The corruption crime here is broad and essentially covers the crimes of embezzlement and bribery in current mainland Penal Code. In as long as 27 years before the promulgation of the Penal Code in the year of 1979, the Ordinance was the basic norms of criminal law to punish embezzlement and bribery in the Mainland. In July 1979, China passed its first Criminal Code, marking the beginning of codification of criminal justice. The Code prescribes crimes of embezzlement (Any State functionary who, by taking advantage of his office, appropriates, steals, swindles public money or property or by other means illegally take it into his own possession shall be guilty of embezzlement.) and crimes of bribery, with lighter sentence, especially sentence of bribery crimes. In January 1988, in view of grim situation of embezzlement and bribery, the NPC Standing Committee amended the 1979 Penal Code on the crime of embezzlement and bribery and formulated Supplementary Provisions Concerning the Punishment of the Crimes of Embezzlement and Bribery. The Supplementary Provisions systematically and comprehensively revised the 1979 Penal Code on embezzlement and bribery and in fact replaced the relevant provisions of the Penal Code. * Zhao Bingzhi (1956.6-), Professor, Tutor for Ph.D. Candidates, Dean of College for Criminal Law Science and the School of Law of Beijing Normal University, President of the Criminal Law Research Committee of China Law Society, Vice-Chairman of China Branch of AIDP. ** Liu Ke (1974.1-), Lecturer of College for Criminal Law Science of Beijing Normal University, J.D., Secretary of the Criminal Law Research Committee of China Law Society. 260

In 1997, the Mainland China made a comprehensive amendment to the penal code. The crimes of embezzlement and bribery were established as a separate chapter. The NPC Standing Committee in 2006 approved amendment VI, changing the crime of company and corporate officers taking bribes to that of non-public servant staff taking bribes, and the crime of bribery to companies and enterprises personnel to that of bribery to non-public servant; in 2009 the NPC Standing Committee approved amendment VII, which provides a crime of taking bribes by use of influence and raises the legal sentence for the crime of huge amounts of property from unidentified sources. At present, all the provisions about embezzlement and bribery are reflected in the 1997 Criminal Code (amendment VI and amendment VII have been incorporated into the 1997 Criminal Code). According to the 1997 Penal Code, crimes of embezzlement and bribery are: crime of bribery, crime of embezzlement of public funds, crime of taking bribes, crime of bribes taken by a unit, crime of offering bribes, crime of offering bribes to a unit, crime of introducing bribery, crime of huge amounts of property from unidentified sources, crime of concealing offshore deposits, crime of dividing the state-owned assets, crime of dividing confiscated property, crime of taking bribes by use of influence, crime of non-public servant taking bribes, crime of offering bribes to non-public servant. ii. Hong Kong SAR Hong Kong inherited common law tradition, with no legal provisions on bribery crimes. The word bribery means accepting bribes or offering bribes. Concerning accepting bribes or offering bribes there are mainly three ordinances in Hong Kong: Prevention of Bribery Ordinance (CAP. 201), Elections (Corrupt and Illegal Conduct) Ordinance (CAP. 554) and the Independent Commission Against Corruption Ordinance (CAP. 204) At present, provisions of bribery crimes are mainly prescribed in the Prevention of Bribery Ordinance, including basic bribery crimes and other forms of bribery crime. Basic ones include offering any advantage to any public servants, public servants soliciting or accepting an advantage, offering any advantage to any prescribed officers, prescribed officers soliciting an advantage, offering any public servant any advantage to induce or reward in regard to contracts and any public servants soliciting or accepting an advantage as an inducement to or reward for contracts. Other forms of bribery crimes include offering bribes of tenders, accepting bribes of tenders, offering bribes in relation to auction, accepting bribes in relation to auction, offering bribes of public servants by persons having dealings with public bodies, agents accepting bribes and the offence of offering bribes to agents. In Hong Kong a typical bribery such as public servant s misappropriation, theft of public property by taking advantage of his position as prescribed in the Mainland Penal Code shall be charged directly according to the Theft Ordinance. iii. The United States There is no uniform criminal code in the United States. As far as bribery law is concerned, the federal law is most representative and inclusive. Understanding the federal law means understanding the whole legal provisions concerning bribery. Among numerous provisions concerning bribery, the following are the most important: Federal Bribery Act, Foreign Corrupt Practices Act, the Hobbs Act, the Travel Act, the Racketeering Influence and Corrupt Organization Act. Difference between heavy bribery (bribery crimes) and light bribery (gift-presenting crimes) in the federal bribery act lies in whether the law is perverted by influencing job duties. These two crimes almost cover all bribes-offering and bribes-accepting crimes that public servants commit. In addition, the Foreign Corrupt Practices Act also provides the crime of bribery to international public organizations and foreign officials. Practices similar to embezzlement in Mainland Penal Code is prescribed in the relevant provisions of theft crime. 261

III. Comparison of the Constitutive Elements Despite the differences on charges of bribery in Mainland China, Hong Kong SAR and the United States, there are generally bribes-accepting crime and bribes-offering crime. A. Bribes-accepting crimes i. Mainland China (1) Bribes-accepting crimes include bribes-accepting, non-public servant accepting bribes, unit accepting bribes and accepting bribes by use of influence. 1. bribes-accepting, non-public servant accepting bribes. Any State functionary or non-public servant who, by taking advantage of his position, extorts money or property from another person, or illegally accepts another person s money or property in return for securing benefits for the person shall be guilty of acceptance of bribes. Crime object is bribes. There are three opinions of the meaning of bribes: a. bribes refers to money or property which can be measured by money, not including other benefits. b. bribes includes other material benefits in addition to money and property. c. bribes means anything that can meet one s physical or spiritual needs, including tangible or intangible things, material and non-material benefits, property or non-property interests. Non-material benefits include the opportunities to go abroad, promotion as well as sexual services and so on. According to the principle of legality, bribery in the criminal law of the Mainland China refers to money or property people extort or receive. We should not arbitrarily expand the scope of bribery. In the objective aspect it is a behavior of extorting money or property from another person, or illegally accepting another person s money or property in return for securing benefits for the person. Article 388: Any State functionary who, by taking advantage of his own functions and powers or position, secures illegitimate benefits for an entrusting person through another State functionary s performance of his duties and extorts from the entrusting person or accepts the entrusting person s money or property shall be regarded as guilty of acceptance of bribes and punished for it. It is so-called indirect bribesaccepting. The crime subject is special subject that is state functionary. According to Article 93, state functionaries as mentioned in this Law refers to: a. persons who perform public service in state organs including at all levels of state power organs, administrative organs, judicial, procuratorial and military organs. Those who are engaged in Party committees at all levels and CPPCC bodies should be regarded as state functionaries. b. persons who perform public service in State-owned companies or, enterprises, institutions or people s organizations. People s organizations refers to democratic parties, trade unions at all levels, the Communist Youth League, women s federations and other mass organizations. c. persons who are assigned by State organs, State-owned companies, enterprises or institutions to companies, enterprises or institutions that are not owned by the State or people s organizations to perform public service. d. the other persons who perform public service according to law. The non-public servants refer to persons in company, enterprise or other unit, including company s directors, supervisors, managers, etc. with the decision-making rights, and the general staff. The mens rea is intentional and generally directly intentional. 262

(2) Unit taking bribes crime is that a State organ, State-owned company, enterprise, institution or people s organization extorts from another person or illegally accepts another person s money or property in return for securing benefits for the person, if the circumstances are serious. (3) Taking bribes by use of the influence crime. ii. Hong Kong SAR There are two kinds of bribery in the Prevention of Bribery Ordinance, which are provided in section 3 and section 4 (2) and section 5 (2). (1) Prescribed officer soliciting or accepting an advantage. Any prescribed officer who, without the general or special permission of the chief executive, solicits or accepts any advantage shall be guilty of an offence. The subjects of this crime is prescribed officer. Prescribed officer means (a) any person holding an office of emolument, whether permanent or temporary, under the Government; and(b) the following persons (to the extent that they are not persons included in paragraph (a))- (i) (ii) (iii) (iv) (v) any principal official of the Government appointed in accordance with the Basic Law; the Monetary Authority appointed under section 5A of the Exchange Fund Ordinance (Cap 66) and any person appointed under section 5A(3) of that Ordinance; Chairman of the Public Service Commission; any member of the staff of the Independent Commission Against Corruption; any judicial officer holding a judicial office specified in Schedule 1 to the Judicial Officers Recommendation Commission Ordinance (Cap 92) and any judicial officer appointed by the Chief Justice, and any member of the staff of the Judiciary. In the objective aspect it is a behavior of soliciting or accepting an advantage without the general or special permission of the chief executive. An advantage means (a) (b) (c) (d) (e) (f) any gift, loan, fee, reward or commission consisting of money or of any valuable security or of other property or interest in property of any description; any office, employment or contract; any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part; any other service, or favour (other than entertainment), including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted; the exercise or forbearance from the exercise of any right or any power or duty; and any offer, undertaking or promise, whether conditional or unconditional, of any advantage within the meaning of any of the preceding paragraphs (a), (b), (c), (d) and (e), but does not include an election donation within the meaning of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554), particulars of which are included in an election return in accordance with that Ordinance; (2) Public servants soliciting or accepting advantage. 263

Any public servant who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement or reward shall be guilty of an offence. The subject of this crime is public servant that means any prescribed officer and also any employee of a public body and- (a) in the case of a public body other than a body referred to in paragraph (aa), (b) or (c) of this definition, any member of the public body; (aa) in the case of a public body specified in Schedule 2; (b) (c) in the case of a public body which is a club or association, any member of the public body; in the case of a public body which is an educational institution established or continued in being by an Ordinance, any officer of the institution. In the objective aspect, firstly, the public servant performs acts of soliciting or accepting advantage from others. Secondly, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his- (a) (b) (c) performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant; expediting, delaying, hindering or preventing, or having expedited, delayed, hindered or prevented, the performance of an act, whether by himself or by any other public servant in his or that other public servant s capacity as a public servant; or assisting, favouring, hindering or delaying, or having assisted, favoured, hindered or delayed, any person in the transaction of any business with a public body. Thirdly, whether the public servant does what the principal requires or not doesn t influence the crime s constitution. Any public servant who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his giving assistance or using influence in, or having given assistance or used influence in- (a) (b) the promotion, execution or procuring of, or the payment of the price, consideration or other moneys stipulated or otherwise provided for in any such contract or subcontract. The contract here means (a) the promotion, execution, or procuring of- (i) (ii) (b) any contract with a public body for the performance of any work, the providing of any service, the doing of any thing or the supplying of any article, material or substance, or any subcontract to perform any work, provide any service, do any thing or supply any article, material or substance required to be performed, provided, done or supplied under any contract with a public body; or the payment of the price, consideration or other moneys stipulated or otherwise provided for in any such contract or subcontract as aforesaid. (3) Other bribes-accepting crimes in Hong Kong criminal law include bribes-accepting in regard to tenders, bribes-accepting in relation to auctions and corrupt transactions with agents. 264

iii. The United States (1) Crimes of accepting bribes Under the Federal Bribery Act of the United States, the crimes of accepting bribes comprise the crimes of heavy bribery (bribery crimes) and the crimes of light bribery (gift-presenting crimes). Section 201(b)(2) of the Act makes it a crime of accepting bribes for a public official or an elected public office holder to demand, seek, receive or accept or agree to accept anything of value, either directly or indirectly, personally, for another person or for an entity in return for the following acts: (1) being influenced in the performance of any official act; (2) doing an act, aiding in an act, colluding in an act, allowing an act or making an opportunity for an act to be done to defraud the government; (3) being induced to do or omit an act in violation of his statutory duty. Under the provisions of Section 201(c)(1)(B) of the Act, the crime of accepting gratuities refers to any act on the part of a public official, a former public official or an elected public office holder, for an official act performed or to be performed, to seek, demand, receive or accept or agree to receive or accept anything of value personally or for another person, unless it is expressly stipulated in law that such acts are part of his duty performance. B. Bribes-offering crimes i. Mainland China Bribes-offering crimes mainly include bribes offering, bribes offering to non-public servant and bribes offering to unit. (1) Bribes-offering crime Whoever, for the purpose of securing illegitimate benefits, gives money or property to a State functionary or whoever, in economic activities, violates State regulations by giving a relatively large amount of money or property to a State functionary or by giving him rebates or service charges of various descriptions shall be regarded as guilty of offering bribes and punished for it. (2) Bribes offering to non-public servant Whoever, for the purpose of seeking illegitimate benefits, gives money or property to any employee of a company or enterprise or other unit, if the amount involved is relatively large, shall be guilty of offering bribes to non-public servant. (3) Bribes offering to unit Whoever, for the purpose of securing illegitimate benefits, gives money or property to a State organ, State-owned company, enterprise, institution or people s organization or, in economic activities, violates State regulations by giving rebates or service charges of various descriptions shall be guilty of bribes offering to unit. ii. Hong Kong SAR In the Prevention of Bribery Ordinance, there are crime of offering any advantage to a public servant as an inducement or reward, crime of offering any advantage to a public servant as an inducement or reward in regard to contracts (these two are similar to bribes-offering crime in the Mainland), crime of offering any advantage to prescribed officer, crime of bribes-offering in regard to tenders, bribes-offering in relation to auctions and crime of offering bribes to agents. iii. The United States Section 201(b)(1) of the Federal Bribery Act of the United States makes it a crime of offering bribes for a person to give or undertake to give any public official or elected public official anything of value, either 265

directly or indirectly, or give or undertake to give any other individual or unit anything of value at the request of such public official, with intent to: (1) influence any official act; (2) influence such public official so that he does an act, aids in an act, colludes in an act or makes an opportunity for an act to be done to defraud the government; (3) induce such public official to do or omit an act in violation of his statutory duty. Under the provisions of Section 201(c)(1)(A) of the Act, the crime of offering gratuities refers to any act on the part of a person to give or undertake to give any public official, former public official or elected public official anything of value, either directly or indirectly, for an official act performed or to be performed, unless it is expressly stipulated in law that such acts are part of his proper duty performance. Foreign Corrupt Practices Act prohibits any corrupt payment intended to influence any act or decision of a foreign official in his or her official capacity, to induce the official to do or omit to do any act in violation of his or her lawful duty, to obtain any improper advantage, or to induce a foreign official to use his or her influence improperly to affect or influence any act or decision. IV. Comparison of criminal responsibility i. Mainland China 1. Bribes-accepting crimes (1) According to article 386, whoever has committed the crime of acceptance of bribes shall, on the basis of the amount of money or property accepted and the seriousness of the circumstances, be punished in accordance with the provisions of Article 383 of this Law. Whoever extorts bribes from another person shall be given a heavier punishment. Persons who commit the crime of acceptance of bribes shall be punished respectively in the light of the seriousness of the circumstances and in accordance with the following provisions: a. An individual who accepts bribes of not less than 100,000 yuan shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and may also be sentenced to confiscation of property; if the circumstances are especially serious, he shall be sentenced to death and also to confiscation of property. b. An individual who accepts bribes of not less than 50,000 yuan but less than 100,000 yuan shall be sentenced to fixed-term imprisonment of not less than five years and may also be sentenced to confiscation of property; if the circumstances are especially serious, he shall be sentenced to life imprisonment and confiscation of property. c. An individual who accepts bribes of not less than 5,000 yuan but less than 50,000 yuan shall be sentenced to fixed-term imprisonment of not less than one year but not more than seven years; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than seven years but not more than 10 years. If an individual who accepts bribes of not less than 5,000 yuan and less than 10,000 yuan, shows true repentance after committing the crime, and gives up the embezzled money of his own accord, he may be given a mitigated punishment, or he may be exempted from criminal punishment but shall be subjected to administrative sanctions by his work unit or by the competent authorities at a higher level. d. An individual who accepts bribes of less than 5,000 yuan, if the circumstances are relatively serious, shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention; if the circumstances are relatively minor, he shall be given administrative sanctions at the discretion of his work unit or of the competent authorities at a higher level. 266

(2) Non-public servant accepting bribes crime If the amount is relatively large, he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the amount is huge, he shall be sentenced to fixedterm imprisonment of not less than five years and may also be sentenced to confiscation of property. (3) Unit accepting bribes The unit shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the offence shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention. (4) Acceptance of bribes using influence He shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; if the amount involved is huge, or if there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined. If the amount involved is especially huge, or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than seven years and shall also be fined or sentenced to confiscation of property. 2. The crime of offering bribes (1) Whoever commits the crime of offering bribes shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; whoever offers bribes to secure illegitimate benefits, if the circumstances are serious or if heavy losses are caused to the interests of the State, shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and may also be sentenced to confiscation of property. (2) Crime of offering bribes to non-public servant He shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the amount involved is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined. (3) Crime of offering bribes to unit He shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. ii. Hong Kong SAR For crimes of offering bribes and accepting bribes, sentences are almost the same in Hong Kong. (1) Any person guilty of an offence under this Part, other than an offence under section 3, shall be liable- (a) on conviction on indictment- (i) (ii) for an offence under section 10, to a fine of $1,000,000 and to imprisonment for 10 years; for an offence under section 5 or 6, to a fine of $500,000 and to imprisonment for 10 years; and 267

(iii) for any other offence under this Part, to a fine of $500,000 and to imprisonment for 7 years; and (b) on summary conviction- (i) (ii) for an offence under section 10, to a fine of $500,000 and to imprisonment for 3 years; and for any other offence under this Part, to a fine of $100,000 and to imprisonment for 3 years, and shall be ordered to pay to such person or public body and in such manner as the court directs, the amount or value of any advantage received by him, or such part thereof as the court may specify. (2) Any person guilty of an offence under section 3 shall be liable on conviction to a fine of $100,000 and to imprisonment for 1 year, and shall be ordered to pay to the Government in such manner as the court directs the amount or value of the advantage received by him or such part thereof as the court may specify. iii. The United States 1. Sentence of imprisonment 2. Fine According to FCPA, a natural person is subject to imprisonment for up to five years for violations of the FCPA s antibribery provisions. According to FCPA, corporations and other business entities are subject to a fine of up to $2,000,000; a natural person is subject to a fine of up to $100,000 for violations of the FCPA s antibribery provisions. 3. Deprivation of civil right 4. Confiscation of crime gains and benefits V. Preliminary Opinions Based on Comparative Analysis i. Regarding the system of offences The systems of offences relating to bribery crimes are enormous in content and numerous in offences, whether in Mainland China, Hong Kong SAR or the United States. For every crime of bribery which occurs in practice and on which criminal regulation is necessary, a corresponding offence is available in the criminal law. This facilitates the protection of human rights, the fulfillment of the social protection function of criminal law, as well as the thorough implementation of the principle of having a legally prescribed punishment for each specified offence. One can say that Mainland China, Hong Kong SAR and the United States all have put in place their respective established systems of offences relating to embezzlement and bribery crimes. The systems of offences relating to embezzlement and bribery crimes in Mainland China, Hong Kong SAR and the United States are, of course, not without defects. By comparing the relevant international conventions and the establishment of offences relating to embezzlement and bribery crimes, and in the light of the necessity to punish embezzlement and bribery crimes, we opine that consideration should be given to improve the systems of offences relating to embezzlement and bribery in Mainland China, Hong Kong SAR and the United States in the following aspects: 268

First, the criminal laws of Mainland China and Hong Kong SAR should establish a new offence of offering bribes to officials of international public organizations and of foreign countries. This offence should be a summation of the offences set out in Paragraph 1, Section 16 of the United Nations Convention Against Corruption (hereinafter referred to as the Convention ). Similar provisions also exist in the criminal laws of foreign countries and international legislative documents, such as Part II of the United States Foreign Corrupt Practice Act and Article 1 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Given the development of globalization, a criminalization of such acts of offering bribes is advisable, as they disrupt market order, breed corruption among officials, and tarnish the image of enterprises and their countries, and are almost on a par with bribery to local public officials in terms of the harm done. It is necessary to establish this new offence since the Penal Code of Mainland China and the criminal law of Hong Kong SAR only provide against bribery to public officials of the Mainland or Hong Kong, but do not have any criminal regulation against bribery to officials of foreign countries or of international public organizations. Second, the United States and Hong Kong SAR should consider criminalizing acts of public officials to embezzle public property separately as an offence of embezzlement and bribery crimes in the criminal laws. From a perspective of systems of offences, the criminal law of Mainland China criminalizes acts of public officials to embezzle public property separately (namely crimes of embezzlement in the criminal law of Mainland China) and deals with them side by side with crimes of bribery as offences of embezzlement and bribery crimes, so that such offences constitute a separate category of offences on their own. In contrast, the criminal laws of the United States and Hong Kong SAR do not establish any offence of embezzlement crimes, and, consequently, embezzlement acts similar to those in Mainland China are dealt with as offences of theft or encroachment. In our view, the approach adopted in the criminal law of Mainland China is more desirable. The crime of embezzlement is a serious and prevalent crime in which public officials take advantage of their offices. Given the importance of public officials in the politics and economy of a country, such crimes would cause serious harm to society, not only resulting in severe loss of public property, but also compromising the integrity in duty performance and tarnishing the image of state organs. To criminalize embezzlement separately will be significant in straightening out official administration; promoting honesty, uprightness and anti-corruption in a country; highlighting the key points of punishing against embezzlement in accordance with the criminal law; and curbing such criminal activities effectively. On the contrary, to incorporate the crime of embezzlement into the corresponding crimes of theft or encroachment would blur the nature of embezzlement crimes as offences committed by taking advantage of office and as corruption offences, and the crimes of embezzlement will consequently be dealt with in the same ways as the crimes of theft or encroachment, hence impossible to highlight the target for crackdown. As such, we opine that it is desirable for the United States and Hong Kong SAR to criminalize acts of public officials to embezzle public property as separate and independent offences, and incorporate the crimes of embezzlement and the crimes of bribery into a broad category of embezzlement and bribery crimes, with a view to providing clear and definite guidance for the efforts to crack down crimes of corruption. ii. Regarding constitutive elements Mainland China, the United States and Hong Kong SAR have made significant achievements in combating against crimes of embezzlement and corruption. Whereas, in comparison, crimes of embezzlement and corruption are still relatively rampant in Mainland China, and public satisfaction in this regard is relatively low. This stems partly from factors of realities, such as an imperfect political system and socio-economic transformation, and partly from the imperfection of the laws themselves. A look into the constitutive elements of the crimes of bribery in Mainland China, the United States and Hong Kong SAR has revealed that, while the three places basically have the same provisions on crime subjects, all covering public officials (crime in public service) and non-public officials (personnel of enterprises or public institutions), they have different provisions on crime objects, objective conditions and subjective conditions. 269

Regarding the crimes of embezzlement, Mainland China, as compared with Hong Kong SAR and the United States, has set a more limited scope for crime objects and her requirements on subjective and objective conditions are too strict, hence her scope for establishing crimes of embezzlement and bribery is narrowed to a certain degree. Accordingly, with reference to the legislation of Hong Kong SAR and the United States, it is necessary to improve the criminal law of Mainland China with regard to crime constitutive elements as follows: 1. To expand the scope of bribes from property to property or proprietary interests The specific content (or scope) of bribes is uniformly defined as property in the Penal Code of Mainland China. This provision differs significantly from those of the criminal laws of the United States and Hong Kong SAR. From a perspective of the current legislation, most countries have extended the scope of bribes to include proprietary interests, and even to all benefits. For example, the Federal Bribery Act of the United States provides that a bribe is anything of value, and anything of value means something of value so far as it is subjectively deemed by the subject to be of value or ascribed a value by the subject, regardless of whether it has any value objectively. It transpires from the cases attended to by the Federal Court that shares to be listed and a well-paid job may constitute something of value. As defined in the Prevention of Bribery Ordinance of Hong Kong, a bribe means an advantage, namely (a) any gift, loan, fee, reward or commission consisting of money or of any valuable security or of other property or interest in property of any description (e) the exercise or forbearance from the exercise of any right or any power or duty, etc. The term bribe is also defined as illegitimate benefits in United Nations Convention Against Corruption. Apparently, both Hong Kong SAR and the United States regard proprietary interests as bribes. From a perspective of the judicial practice in Mainland China, to restrict bribes to property has had a negative effect on the punishment for crimes of bribery. Bribery relating to offer and acceptance of large amount of proprietary interests, having jeopardy as severe as that relating to offer and acceptance of property, is sufficiently serious to constitute a crime, but it is hardly subject to criminal punishments due to legislative constraints. This provides haven for bribers to get away with criminal punishment, hence hampering the combat against crimes of bribery. Some scholars in Mainland China suggest expanding the interpretation of the term property to cover proprietary interests, but we are of the opinion that property is, after all, clearly different from proprietary interests, and that any attempt to solve this issue by expanding the interpretation would result in disputes on analogical interpretation and expanding interpretation. Therefore, we suggest amending the Penal Code to extend the scope of bribery to property or proprietary interests. Regarding the issue of extending the scope of bribery, some scholars in Mainland China suggest extending the scope to non-proprietary interests. We do not agree to the viewpoint for the following reasons: (1) The jeopardy resulting from acts of merely offering or accepting non-proprietary interests is limited. It is usually unnecessary to criminalize such acts. The criminal legislation of Mainland China, being different from those of Hong Kong SAR and the United States, has a higher threshold for criminalization. An act of merely offering or accepting non-proprietary interests usually does not reach the threshold for criminal punishment, and, as such, it is not necessary to extend the scope of bribery crimes to take nonproprietary interests into account. Hong Kong SAR and the United States have strict regulation over their public officials, and their legislative patterns adopt a qualitative rather than a quantitative approach to the commission of offences. These are the reasons why they treat some non-proprietary interests (such as job offers) as bribes. (2) Even if other serious consequences follow from the offer or acceptance of nonproprietary interests, the subject s punishment should preferably not be decided based on any offence of bribery but on other offences instead. As put by scholars who are in favor of extending the scope of bribes to all illegitimate benefits, any illegitimate benefits can be used as bribes in exchange for benefits, but different bribes cause different degrees of harm to crime objects. The crime object that bribery infringes on is the unbribable nature of the duties of public officials. As non-proprietary interests are something difficult to measure on monetary terms, the infringement made by an offer or acceptance of non-proprietary interests to the unbribability of duty, which is a legal interest, is not obvious. Therefore, such acts should 270

preferably not be dealt with and punished against as an offence of bribery, and, where such acts have the constitutive elements of any other offence (e.g. abuse of power), they should be dealt with and punished against as such offences instead.. 2. To modify the constitutive element for the purpose of securing illegitimate benefits Under the Penal Code of Mainland China, the constitutive element of the offences of offer of bribes to or by non-governmental personnel or a unit requires a subjective motive on the part of the offender to secure illegitimate benefits. From a perspective of the relevant laws of Hong Kong and the United States, the determination of an offence of bribery may simply not be based on the existence of any special purposes as subjective conditions. For example, Sections 4 to 9 of the Prevention of Bribery Ordinance of Hong Kong set out the offences of bribery or define special purposes in a very clear manner. The Foreign Corrupt Practices Act of the United States restricts subjective purposes to inducing officials to abuse or deviate from their duty. We are of the opinion that in Mainland China, the subjective condition for the purpose of securing illegitimate benefits shall be modified, as it is ambiguous in content and has seriously affected the determination of whether an act of bribery constitutes an offence and put the punishment for bribery offences in a corner. 1 Currently, it is advisable to consider modifying for the purpose of securing illegitimate benefits to inducing relevant persons to abuse their powers or breach their duties for the purpose of securing benefits or edging out competitors. With such modification, acts of bribery for illegitimate benefits may be put within the scope of combat of the criminal law, and acts of bribery which are done with intent either to secure benefits by illegitimate means (rather than to secure illegitimate benefits) or to jeopardize market order of fair competition may be punished within the framework of the principle of having a legally prescribed punishment for each specified offence. iii. Regarding criminal responsibility It transpires from a comparison that the criminal punishments Hong Kong SAR and the United States for crimes of bribery are basically similar to each other but fairly different in Mainland China: imprisonment penalty is generally not severe both in Hong Kong SAR and the United States (15 years or 10 years maximum). Punishments in Hong Kong SAR and the United States attach importance to property punishments. Fines of large amounts are stipulated for every offence of bribery. Qualification punishment is also an important part. Whereas in Mainland China, the highest level of imprisonment penalty is severe (including death penalty and life imprisonment); property punishment is not emphasized (only confiscation of property is stipulated for certain offences); no qualification punishment is stipulated. Apparently, the legislation of the United States and Hong Kong SAR is more consistent with the trend of legislation in many countries and international conventions in relation to the punishment for corruption crimes. Therefore, it is necessary for Mainland China to adjust the punishment system set out in the Penal Code in the light of the legislative experience of Hong Kong and the United States. Specifically, work can be started in the following three respects: 1. To abolish death penalty for crimes of bribery Undoubtedly, no grounds can be found in international legislation for imposing death penalty for crimes of bribery. Even in the United States, where death penalty is retained, death penalty is not imposed for crimes of bribery. Mainland China maintains death penalty for crimes of bribery for three reasons: first, crimes of bribery are currently prevalent in Mainland China; severe punishment is necessary to exert deterrent effect; second, the abolishment of death penalty for crimes of bribery would result in strong public discontent, affecting the stability of society; third, strict regulation of public officials is a tradition of Mainland China. In our view, the above three reasons are rather farfetched and unconvincing: first, to produce 1 Zhao Bingzhi: The Determination and Modification of Securing Illegitimate Benefits in Business Transactions, published in the People s Procuratorial Semimonthly, Issue 13 of 2006 271

deterrence through severe penalties is subject to a limit in modern society, and death penalty for crimes of bribery exceeds this limit; second, judging by current judicial practice, the abolishment of death penalty would neither result in strong public discontent nor affect the stability of society; third, in modern society, strict regulation over public officials shall not be confined to deterrence through severe penalties, but shall instead embody itself in a strict supervisory system to restrain officials from irregularities. In addition, imposing death penalty for crimes of accepting bribes has affected the criminal judicial cooperation between Mainland China and other countries and regions in the pursuit of corruption offenders who flee overseas. 2 Therefore, it is necessary for Mainland China to abolish death penalty for crimes of bribery in the light of the advanced legislation of other countries. 2. To increase the types and scope of application of property punishment The crime of bribery is a profit seeking crime as well as a crime of dereliction of duty. Accordingly, property punishment shall be imposed for such crime. The criminal law of Hong Kong SAR stipulates fine penalty extensively: any bribery that constitutes a crime is subject to fine penalty. The Foreign Corrupt Practices Act and the Federal Bribery Act of the United States also set out that combined or selective fine penalty applies to every crime of bribery. The Penal Code of Mainland China imposes confiscation of property or fine penalty only on serious crimes of bribery or unit crimes, but does not stipulate any property punishments for crimes of bribery in general. Such penalty dispositions are obviously unhelpful in remedying crimes of bribery through punishment. We are of the opinion that mandatory fine penalty shall be imposed against the crimes of bribery involving non-government officials set out in Articles 163 and 164 of the Penal Code of Mainland China, and that selective fine penalty shall be imposed for the crimes of bribery in public service set out in Chapter 8 of the Penal Code. 3. To introduce qualification punishment Qualification punishment is particularly effective in preventing crimes of bribery. Once qualification punishment is imposed against a bribe subject, it means temporary or permanent removal from a market or the relevant domain and the deprivation of any opportunity to commit crimes of bribery any further. Therefore, many countries impose qualification punishment for crimes of bribery, or equivalent administrative sanctions even where there is no qualification punishment. For example, according to the guidance issued by Office of Management and Budget of the United States, any individual or company violating the Foreign Corrupt Practices Act will be deprived of the qualification to participate in government purchase, and if they are found guilty of any such illegal act by the court, they will be deprived of their eligibility to engage in export activities. Similar provisions can be found in the Prevention of Bribery Ordinance of Hong Kong SAR. In contrast, the Penal Code of Mainland China does not impose qualification punishment for crimes of bribery. We regard this as a flaw. In view of the importance of qualification punishment in the prevention of bribery crimes, it is advisable to consider imposing qualification punishment against bribery offenders, such as deprivation of the qualification to engage in relevant profession or assume certain offices. 2 Zhao Bingzhi: Legislative Experience of International Society in Punishments for Crimes of Bribery in Business Transactions, published in Journal of The East China University of Politics and Law, Issue 1 of 2007. 272