Legal Regulation Study On Combating Commercial Bribery Committed By Transnational Corporation

In recent years,with the deepening of China's reform and opening up,there are more and more transnational corporations operating in our country.While bringing capital,technology and management experience to China,some commercial bribery scandals of those transnational corporations have been discovered.These violations not only disturb the normal operation of our economy but also affect the rational allocation of social resources.To a certain extent,this has led to the deterioration of the investment environment and the spread of corruption,which must be severely dealt with.At present,there are some loopholes and blind spots in the legislation and law enforcement of punishing the commercial bribery of transnational corporations in our country,which is urgently needed to be solved in order to deal with the legal dilemma in reality.In this dissertation,the author analyzes and defines the related concepts of“commercial bribery of transnational corporations”.Through study of the official websites of major international organizations and law enforcement agencies of the United States,and access to the sources of international conventions and anti-corruption declarations,law enforcement cooperation agreements and other authoritative foreign materials,the author has collected a large number of law enforcement cases and relevant reports from international organizations.Using the method of literature research and case analysis,the author discusses the effective legal regulation measures against commercial bribery from the perspective of international law and domestic law of the United States.Finally,the author analyzes the current situation of commercial bribery of transnational corporations in China,and putsforward suggestions on how to perfect the system of legislation against commercial bribery in our country through comparative research.In the first chapter,the author explains the related concepts of “commercial bribery of transnational corporations”,defines the connotation and denotation of“transnational corporations” according to the most widely accepted definition in academia,and analyzes “corruption”,“bribery” and “commercial bribery”.The author adopts the views of the “United Nations Convention against Corruption”,the“Inter-American Convention against Corruption” and the “Foreign Corrupt Practices Act” of the United States,which considers corruption as a broader concept and bribery as a special form of it.“Bribe” itself has the double part-of-speech of noun and verb.The term “bribe” as a noun should include property,property interests and non-property benefits.The term “bribe” as a verb covers both offering bribes and taking bribes.According to the Black's Law Dictionary,commercial bribery is a form of bribery,which,in general,refers to offering bribes in a narrow sense.The“commercial bribery of transnational corporations” discussed in this dissertation mainly refers to the commercial bribery that occurs in the international commercial activities by the main body of transnational corporations.Then,based on the relevant international conventions,legislative documents and the OECD data from “Analysis of Bribery Reports by Foreign Public Officials”,the author analyzes the causes of commercial bribery of transnational corporations from three perspectives of economy,politics and law,and the great harm it has caused to world development,transnational corporations themselves and their internal governance.Therefore,it is necessary to regulate the issue of commercial bribery of transnational corporations simultaneously from both international law and domestic law,to avoid this phenomenon from adversely affecting the global sustainable development,good governance and the rule of law in the host country.The second chapter discusses respectively the legal regulation of the commercial bribery of transnational corporations at the international law level by the United Nations and the international conventions and declarations of three major regional organizations.The first part introduces the efforts of the United Nations to prevent and control corruption,including the promulgation of the “International Code of Conduct for Public Officials”,the “United Nations Declaration against Corruption and Bribery in International Commercial Transactions”,the “United Nations Convention Against Transnational Organized Crime”,and other legal documents.Italso elaborates the main contents and characteristics of the “United Nations Convention against Corruption” which contains the largest number of states and has the greatest influence.Next,the author choose three most representative international organizations,including OECD,OAS and APEC(covering Europe,the Americas,Asia and the Pacific),and introduced the major international conventions,declarations,implementation proposals and action plans formulated by these international organizations in order to regulate transnational corruption.The author focuses on the OECD “Convention on Combating Bribery of Foreign Public Officials in International Business Transactions” which features a peer-reviewed anti-bribery monitoring system,the OAS “Inter-American Convention against Corruption” which is the world's first anti-corruption treaty jointly issued by many countries,as well as the main contents and characteristics of the APEC “Beijing Declaration on Fighting Corruption” which is dominantly drafted by our country and has set up an anti-corruption law enforcement cooperation network in the Asia Pacific region.These regional conventions and declarations provide a positive reference for the supervision and enforcement of international conventions,the criminalization of criminal,administration and civil matters from a multi-angle perspective,as well as the international mutual legal assistance and extradition rules.The third chapter elaborates and analyzes FCPA's regulation on the commercial bribery of transnational corporations through four parts,so as to understand and learn from the successful experience of the United States in solving this difficult problem.The author introduces the legislative background and revision process of FCPA in the first part,and then discusses the two basic articles of the FCPA in the second part(anti-bribery clause and accounting clause)and their characteristics.In short,the former prohibits bribing foreign officials in order to obtain any unfair advantage or obtain or retain a business,while the latter prohibits individuals and enterprises from deliberately forging books and records or intentional evasion and failure to implement internal control system.At the same time,the author also summarizes the four characteristics of FCPA: extensive extraterritorial jurisdiction,reasonable exemption clauses,severe legal liabilities and the establishment of a priori inquiry procedure.The third section focuses on the division of functions and law enforcement policies of the two major law enforcement agencies of FCPA,the U.S.Department of Justice and the Securities and Exchange Commission,and in particular the unique tools of cooperation they take for entities and individuals.Finally,through analysis ofenforcement cases of FCPA published by DOJ and SEC in the past two years,the author summarizes the latest development trends and innovations of FCPA,including the constant expansion of the field of law enforcement,the expansion of the scope of“any article of value”,the strengthening of international cooperation in law enforcement as well as the further improvement of the reporting system,which have played a better deterrent to multinational corporations.In the fourth chapter,based on the ranking of “Corruption Perceptions Index2017” released by Transparency International in 2018,the commercial bribery cases of Chinese subsidiary of transnational corporations published by the official website of SEC and the classic case of commercial bribery by GSK in China,the author analyzes the current commercial bribe situation of transnational corporations in our country,and finds that such commercial bribery is characterized by its extensiveness,diversity and concealment as well as the gap in our legislation.The situation is already very grim.Next,the author summarizes the current legislative system of commercial bribery of transnational corporations in China through commentary of the criminal legislation(Criminal Law and related judicial interpretation)and non-criminal legislation(Anti-unfair Competition Law and other regulations).In the aspect of criminal legislation,with the promulgation of the "Criminal Law Amendment(IX)",the legislative system has been perfected,but its application is still relatively narrow and the scope of bribery is limited to property and property interests.In the aspect of non-criminal legislation,the author focuses on the newly revised Anti-Unfair Competition Law in 2017 and finds that the legal provisions on anti-commercial bribery in our country are scattered in the normative documents of various departments with limited scope and low level of effectiveness,and the definition of commercial bribe is not uniform and comprehensive.There is no provision on indirect bribery and the parent company's legal responsibilities,the administrative sanctions measures are inadequate as well.The author believes that our country should rationally define the concept of “commercial bribery” and increase the scope of its applicable subject;define the functional boundaries of various departments,make laws where necessary and set up special institutions;improve the mechanisms for the discovery,investigation and recovery of bribe crimes and raise the level of bribery Costs;increase indirect commercial bribery and legal responsibility of the parent company,establish reporting mechanisms;and,where appropriate,apply extradition procedures to enhance international judicial cooperationand information sharing.By perfecting the legal system,we can effectively regulate the commercial bribery behavior of transnational corporations and form a substantive deterrent to them.To sum up,the author concludes that China should actively learn from the United Nations,relevant international organizations and the United States' useful legislation and law enforcement experience and understand its intention and purpose of regulating commercial bribery of transnational corporations,constantly improve Chinese laws on commercial bribery of transnational corporations System and fully implement the international obligations under the United Nations Convention against Corruption.Nowadays,with the frequent international economic exchanges,all countries should,through their cooperation and efforts,continuously improve the international judicial assistance system and build up an anti-corruption law enforcement cooperation network so as to make greater contribution to creating a more regulated and orderly global business environment.