Study On Commercial Bribery Provisions In The New Anti-unfair Competition Law

Under the current background of the globalization of anti-corruption,commercial bribery,as one reason for corruption,has been valued by China.China's new “Anti-Unfair Competition Law” came into effect on January 1,2018.One of the most important and significant changes to the old law is the substantial revision of commercial bribery regulation under Article 8 of the old law(Article 7 in the new Anti-Unfair Competition Law).The extension of commercial bribery under the new law is no longer limited to the purpose of “selling or purchasing goods” but extends to “seeking trade opportunities or competitive advantages”.At the same time,the new Anti-Unfair Competition Law redefines the objects,contents and penalties of commercial bribery.I use the empirical analysis and case analysis methods in this paper.By analyzing the commercial bribery provisions in the new Anti-Unfair Competition Law,I hope to explore the characteristics and existing problems of the new law,and give advice on improving the related legal system of anti-commercial bribery and anti-corruption mechanism of enterprises.Besides preface and conclusion,this paper includes four parts.The first part introduces the concept of commercial bribery briefly,analyzes the characteristics of commercial bribery,discusses the most common commercial bribery behaviors,and makes a distinction between these commercial bribery behaviors and legal acts.The second part analyzes the definition of commercial bribery under Article 7 of the new Anti-Unfair Competition Law from subject,subjective,object and objective aspects;analyzes Article 7 by the comparison of the commercial bribery clause between the old law,the first draft,the second draft and the current Anti-Unfair Competition Law,summarizes the characteristics of commercial bribery in the current Anti-Unfair Competition Law.In the third part,the author analyzes some problems existing in commercial bribery clause in the new Anti-Unfair Competition Law through some cases.For example: Whether giving off-the-books discounts or commissions secretly is a commercial bribe or not? Whether giving the “benefit” to the opposite party for transaction is a commercial bribe or not? How to distinguish between acts of commercial bribery is the employee's personal behavior or corporate behavior?In the last part,on the one hand,the paper gives some advice on improving the related legal system of anti-commercial bribery.On the other hand,for anti-corruption mechanism of enterprises,the paper gives some advice on establishing an efficient and operational management system and improving the management and control mechanisms for third party to ensure full compliance with the law.