A Comparative Analysis Of Chinese And German Laws On The Bribee Of Commercial Bribery

The Anti-Unfair Competition Law(amended in 2017)came into effect on January 1,2018 and the commercial bribery clause has been modified to a large extent.It is mainly reflected in the definition of the scope of the bribee of commercial bribery.Article 8(1)of the old Anti-Unfair Competition Law stipulates the subject of commercial bribery as "the counterparty or individual",while Article 7(1)of the new Anti-Unfair Competition Law restricts the scope of bribee to the following three types of people:(1)The employee of the other party to a transaction;(2)The entity or individual authorized by the other party to a transaction to handle relevant affairs;(3)The entity or individual that uses power or influence to affect a transaction.This problem has been also constantly discussed in German academia.Therefore,this article attempts to define the scope of the bribee of commercial bribery in more details based on the purpose of legislation and the nature of commercial bribery.Excluding the question-raising and conclusion,this article is divided into five parts.The first part is an analysis of the legislative aim of Article 7 of the Anti-Unfair Competition Law.The purpose of the prohibition of commercial bribery mainly lies in the protection of the fair competition order,the freedom of action and decision-making of businesses and consumers and the interests of competitors.Among them,the reason why commercial bribery damages the competition order is not because it violates the principle of efficiency competition,but because it seriously affects the basic functions of free competition.The second part is an introduction to the theory of the nature of commercial bribery in China and Germany.The rationality and defects of various theories will be analyzed.Combining the legislative purpose of the provision of the Anti-Unfair Competition Law mentioned above,we can draw a conclusion that the nature of commercial bribery is the "decision-interests" exchange.Commercial bribery involves three parties inevitably,among which,the intermediary who should be defined as bribee should enjoy the status of making decisions for the third party.The briber provides the intermediary with interests,and as a reciprocal payment,the intermediary shall make a market decision that is beneficial to the briber.The third part is an analysis of the bribery behavior of the counterparty of the transaction.Considering the nature of commercial bribery,the counterparty of the transaction is not a subject of the bribe in principle,unless it is in a position of decisionmaking for a third party.The fourth part is concerned with the definition of “people who use their influence to affect transactions”.By analyzing the determination criteria in similar cases in Chinese and German law,this kind of bribee should refer to a person who,in the absence of formal authorization from a third party,is actually making decisions for the third party for various special reasons.Therefore,the "influence" should be narrowly interpreted as “decisive influence”.The fifth part is about how the third party's informed consent on the intermediary's acceptance of benefits.In view of the fact that the behavior of the intermediary in this case will not undermine the protection purpose of Article 7 of the Anti-Unfair Competition Law and doesn't conform to the nature of commercial bribery,the application of Article 7 of the Law should be excluded by means of the purposive limited interpretation,so that the behavior of the intermediary can't be identified as commercial bribe.