Study On The Legal Regulation Of Commercial Bribery In China From The Perspective Of Improving Business Environment

As a means of unfair competition,commercial bribery seriously damages the market order of fair competition and hinders the improvement of business environment of China.According to the "Global Integrity Index List" issued by Transparency International,the corruption situation in China is worrying,indicating that China still has a long way to go in the governance of commercial bribery.Under the background that many cities taking measures to improve the business environment,it is necessary to study the current legal regulation of commercial bribery in China.This paper mainly consists of four parts.By using a variety of research methods,the author comprehensively and objectively analyses the problems existing in the legal regulation of commercial bribery in China,and their impacts on the improvement of business environment.By drawing on the international legislative experience of anti-commercial bribery,this paper discusses the improvement of the legal regulation of commercial bribery in China from the perspective of improving the business environment.The first part introduces the problems existing in the legal regulation of commercial bribery in China,and their impacts on the improvement of business environment in China.There are four main problems in the legal regulation ofcommercial bribery in China.First,the legal attribute of entering the items in the books untruthfully is still unclear.The current Anti-Unfair Competition Law only stipulates that operators should enter the items in the books factually when they pay and receive discounts and commissions,but the legal consequence of entering the items in the books untruthfully hasn't been stipulated.It is remained to be further clarified at the legislative level that whether entering the items in the books untruthfully is regarded as commercial bribery or just violation of the financial system.In addition,the current "Anti-Unfair Competition Law" only stipulates that operators can pay discounts to the counterpart of the transaction in an explicit way,as long as it can be recorded truthfully,while it does not clarify whether the act of giving gifts and recording truthfully is commercial bribery or not.Second,the system is not scientific that allows the operators to contradict.The counter-evidence system provides an effective way for legitimate operators to safeguard their rights and interests,but it is difficult to operate in practice.In addition,the counter-evidence system is likely to be a means of evading legal liability for operators.Third,accepting bribes is not regulated by the Anti-Unfair Competition Law.At present,the charges of commercial bribery in the Criminal Law can not completely regulate all accepting bribes,and commercial bribery crimes have the minimum standard for criminal prosecution.Accepting bribes regulated just by the Criminal Law,there is no legal ground to punish partial accepting bribes and the accepting bribes that does not constitute a crime.Fourth,the punishment of commercial bribery is mild.Judging from the accumulative amounts of bribes and profits obtained by enterprises,and considering the development of social economy and the stability of the law,the maximum penalty of 3 millions is still mild.The second part points out that improper identification of commercial bribery hinders the improvement of business environment,and proposes that the legal attribute of entering the items in the books factually should be clarified.Regarding the legal attribute of entering the items in the books factually,neither the United States nor the United Nations takes the entering the items in the books factually of operators in market transactions as the basis for judging whether operators constitutecommercial bribery.Taking example by the treatment of relationship between the recognition of commercial bribery and the financial treatment in the United States and the United Nations,it is suggested that the entering the items in the books untruthfully should not be taken as the basis for the identification of commercial bribery.With regard to gifts,Germany strictly forbids the act of operators offering gifts.But the enactment of the German Gift Act can be said to be a compromise made by legislators who can not withstand the pressure of interest groups of traditional small and medium-sized retail enterprises,and legislators do not regard the offering gifts as commercial bribery to regulate it.Taking example by the legislative experience of German Gift Act and Discount Act,it is suggested that the entering the items in the books factually of gifts should not constitute commercial bribery.The third part points out that those unreasonable systems are another obstacle to the improvement of business environment.Aiming at the lack of maneuverability and easy alienation of the counter-evidence system,it is suggested that the operator liability system should be reconstructed.Advocate to apply operator no-fault liability,and construct the operator relief system at the same time.The application of operator no-fault liability can not only solve the above problems,but also have certain rationality and legal basis,which can urge enterprises to strengthen compliance operations,and actively carry out anti-commercial bribery compliance construction.At the same time,operators should be given some relief rights to safeguard their legitimate rights and interests.In view of the imperfection of legal regulation about accepting bribes in China,on the basis of taking example by the legal regulation about accepting bribes in Germany,it is suggested that accepting bribes should be regulated by the Anti-Unfair Competition Law in China.In terms of legal regulation about accepting bribes,Germany has a thorough understanding of the relationship between about accepting bribes and offering bribes.Whether the German Anti-Unfair Competition Law before1998 or the subsequent German Criminal Code,the commercial bribery is regulated from two aspects: the offering bribes and the accepting bribes.In addition,the German Criminal Code stipulates the same statutory sentence for offering bribes andaccepting bribes.It stipulates the subject of accepting bribes comprehensively,and it has no minimum standard for criminal prosecution.Therefore,the German Criminal Code can regulate accepting bribes well.The fourth part points out that low illegal cost is a major obstacle to the improvement of business environment.This part introduces the punishment of commercial bribery in the United States.The United States Overseas Anti-Corruption Act and the United States Law on Illegal Accumulation of Money and Illegal Crimes Organizations stipulate severe criminal punishments and high civil compensations.High illegal costs make American enterprises pay more attention to their own compliance operations to prevent commercial bribery.It is suggested that the punishment of commercial bribery should be strengthened to raise the illegal costs of enterprises.To increase the illegal cost of enterprises,on the one hand,it is suggested that the punishment of commercial bribery should be strengthened.On the other hand,it is suggested that the public should be encouraged to participate actively in the governance of commercial bribery.Because commercial bribery often has a strong concealment,relying solely on the initiative enforcement of administrative organization for law enforcement is more difficult to find commercial bribery,and the cost of law enforcement is higher.Attach importance to social participation and play actively the role of the public in the governance of commercial bribery,which will help administrative organization for law enforcement to crack down on commercial bribery efficiently and accurately,and help to build a good business environment.The United States and the United Nations all attach great importance to the role of social groups in the governance of commercial bribery.The United States has stipulated a unique system of public interest private litigation which encourages private representatives to initiate civil litigations on behalf of the state against those who violate the laws,and entitle the private representatives to obtain partial remuneration from compensations.The United Nations Convention against Corruption requires states parties to take appropriate measures to encourage individuals and social groups to participate actively in the governance of anti-commercial bribery.It is suggestedthat the reward system should be established for informants to encourage the public to take part in the governance of anti-commercial bribery actively.