Judicial Empirical Research On Commercial Bribery In Internet

In November 2017,the Anti-Unfair Competition Law was revised for the first time in 24 years.The provisions of the commercial bribery section were substantially revised and the concept of commercial bribery in the competition law was redefined.In April 2019,the law was revised again,but the part on commercial bribery remained unchanged.The past academic research and case analysis usually focused on traditional fields such as engineering and medicine,or the commercial bribery of multinational companies,and lacked necessary research and attention on commercial bribery in China's local Internet field.With the rapid development of the Internet industry,corruption cases in the Internet field have also increased by geometric multiples.Therefore,it is necessary to carry out judicial empirical research on commercial bribery in the Internet field under the new situation based on the new Anti-Unfair Competition Law.Based on empirical analysis,supplemented by literature research,this paper uses interdisciplinary research methods to make statistical analysis of commercial bribery cases in the Internet field from the perspectives of economic law and criminal law,sums up the characteristics of commercial bribery in the Internet field and judicial practice problems,and analyzes and demonstrates the reasonable way to further improve the regulation of commercial bribery in the Internet field by examining the mechanism and practice of preventing and cracking down on commercial bribery both inside and outside the domain.The first chapter is an overview of commercial bribery and its legal regulation.It points out the connotation and legal provisions of commercial bribery in competitionlaw and criminal law,and points out the similarities and differences between the two with comparative law.Commercial bribery in the competition law refers to the unfair competition behavior in which the operators buy off individuals or units that may affect the transaction by property or other means in order to seek the transaction or competitive advantage.From the perspective of legislative evolution,the new AntiUnfair Competition Law of 2017 extends the subject of bribery in the 1993 "AntiUnfair Competition Law" and the 1996 "Interim Provisions on Prohibition of Commercial Bribery" of the State Administration for Industry and Commerce from "the other unit or individual" to "other persons closely related to the transaction behavior",extends the purpose of bribery from "selling or purchasing commodities" to "providing or obtaining trading opportunities or other economic benefits",and changes the essence of commercial bribery from "interest inducement" to "power and money transaction".From the perspective of legal liability,the new Anti-Unfair Competition Law of 2017 extends the amount of civil liability compensation from "reasonable expenses incurred from investigation" to "reasonable expenses paid to stop infringement." The penalty of revoking the business license has been added to administrative responsibilities,and the amount of fine has also increased from 10,000-200,000 yuan to 100,000-3 million yuan.Commercial bribery in criminal law refers to a serious criminal act in which the operator gives bribes to the personnel of the counterparty or other relevant personnel who can influence the transaction for the purpose of obtaining commercial trading opportunities in the process of commercial transactions.In 2008,the Supreme People's Court and the Supreme People's Procuratorate promulgated the Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Commercial Bribery,which clearly defined that the crime of commercial bribery involves eight kinds of crimes.With the promulgation of the criminal law amendment,three kinds of crimes have actually been added.According to the subjects,they can be divided into two categories:general commercial subjects and public power subjects,and general commercial subjects.Commercial bribery,whether in competition law or criminal law,its core essence is unfair competition behavior,but it is different in extension,object,regulatory focus and scope of bribery.Commercial bribery in the Internet field is also a form of unfair competition and a manifestation of bribery spreading to emerging industries.At present,there is no specific regulation on commercial bribery in the Internet field,and regulations on commercial bribery such as Anti-Unfair Competition Law and Criminal Law are also universal for commercial bribery in the Internet field.The second chapter is the overall analysis of commercial bribery cases in the Internet field.The first section sorts out the cases of commercial bribery in the Internet field from two sources and makes a brief data analysis.First,the 21 criminal cases of commercial bribery handled in the past three years in Area Y,where the headquarters of A Group Company,a well-known Internet enterprise,are voluntarily discovered and transferred to judicial organs from the sources of the cases.Judging from the positions used,they are mainly focused on activity review and resource allocation.Judging from the personnel status,the front-line operation specialists who deal directly with merchants are the main ones.Judging from the forms of bribery,accepting cash is the main form;Judging from the crime pattern,an industrial chain has been formed to accept bribes.Judging from the processing results,the legal application is controversial.The second is the cases of commercial bribery in seven Internet-related sub-sectors disclosed by the referee's document network.It is found that commercial bribery in the Internet has spread to all sub-sectors and gathered in leading enterprises.The second section points out the behavior and handling characteristics of commercial bribery in the Internet field by induction.The behavior characteristics of commercial bribery in the Internet field are as follows: firstly,the resources hunted go from offline to online;secondly,the benefits sought include both positive and negative aspects;thirdly,it covers the panorama ecology and enterprises at all stages;fourthly,there is a gray-black industrial chain of professional middlemen;fifthly,the objects of commercial bribery are polarized.The characteristics of the handling of commercial bribery cases in the Internet field: in the handling of cases,Internet enterprises "mainly oppose customers";In the application of law,theory and regulations lag behind reality.In the way of obtaining evidence,more attention should be paid to objective evidence.The third chapter is a specific analysis of two typical cases of commercial bribery in the Internet field from the perspective of competition law and criminal law.Case 1 discusses the behavior characterization of commercial bribery middlemen.It is found that the "bribe scalper" between merchants and e-commerce platform commissioners has formed a gray-black industrial chain of commercial bribery in the Internet field,but it often cannot be evaluated in the criminal law and cannot be regulated in the anti-unfair competition law.Case 2 discusses the determination of "illegitimate interests" in commercial bribery.It is found that in the anti-unfair competition law,the "illegitimate interests" of commercial bribery are to seek trading opportunities or competitive advantages through bribery.There are three kinds ofsituations.First,compared with other competitors,the operators think that they have no trading opportunities or are at a competitive disadvantage.According to the normal market trading rules,the counterparty is simply impossible to trade with them.Second,like other competitors,operators have the same competitive opportunities or competitive advantages,and they cannot compete with each other.However,in order to win from them and gain the final favor of the trading partners,they bribe to realize the breakthrough of "from having to being superior".Third,compared with other competitors,the advantages of the operators are still obvious,and trading opportunities still exist.However,in order to be more secure,the operators pay bribes and realize the breakthrough of "preferential treatment to insurance".Any one of the three situations can be identified."Seeking illegitimate interests" in criminal law includes three situations: first,seeking interests that violate laws,regulations,rules or policies,namely illegal interests;The second is to require relevant personnel to provide help or convenient conditions in violation of laws,regulations,rules,policies and industry norms,namely "illegal means and interests";The third is to violate the principles of fairness and justice and seek competitive advantages in economic,organizational and personnel management activities.When determining "violation of the principles of fairness and justice" and "seeking competitive advantage",it is not necessary to consider whether the actor has an objective competitive advantage.The key lies in determining whether non-state personnel include the factor of bribing people to give money and property into their decision-making when making their official acts.The fourth chapter puts forward optimization suggestions to perfect the regulation of commercial bribery law in the Internet field from the perspective of judicial demonstration.The first section is a reference to the system model of anticommercial bribery inside and outside the domain.The extraterritorial part refers to the United Nations Convention against Corruption,the United Kingdom's Anti-Corruption Act of 2010,and the International Organization for Standardization's ISO 37001 AntiBribery Management System-Requirements and Guidelines for Use.It proposes to strengthen the cooperation between state organs and the private sector in the fight against commercial bribery in the Internet field,to set up sufficient internal control and compliance systems for enterprises as exemptions,and to refer to ISO 37001 standards in the design of anti-corruption internal control mechanisms.The anticorruption compliance system of several representative leading enterprises has been selected within the domain.The second section puts forward the thinking ofidentifying and solving the three difficult problems in practice.The first is the legal evaluation of "professional middleman" who takes bribes,and puts forward four ways to identify them: first,as an accomplice of the subject of bribery,the bribery of nonstate personnel shall be punished,but only those who have direct contact with corporate personnel and have conspiracies;The second is to be treated as an accomplice of the briber,which is limited to the bottom of the chain of bribing middlemen who are directly connected with the briber.The third is to deal with it as a separate briber.Those in the chain of bribing middlemen other than the above two are considered as independent bribers,but the money withheld in the process of bribing cannot be evaluated as the amount of crime.The fourth is to break through the crime of introducing bribery in the reform of the existing criminal law,to crack down on all middlemen who take bribes as the crime of introducing bribery,and to solve the problem of decreasing the amount of bribery layer by layer.The second is the identification of "illegitimate interests" in bribery.It is believed that whether bribery of enterprise personnel to eliminate negative evaluation in the Internet field can be identified as "seeking trading opportunities or obtaining competitive advantages" in competition law requires specific analysis of specific issues.In criminal law,the core key is whether the above acts violate laws,regulations,rules or industry norms.Therefore,industry norms need to be further improved.Finally,regarding mediation and bribery in commercial bribery,it is suggested that we can refer to the provisions of our criminal law on mediation and bribery of state functionaries,and consider making the same provision for bribery of non-state functionaries when necessary according to the need of punishing and preventing commercial bribery.The third section proposes to construct an enterprise-centered anti-commercial bribery mechanism in the Internet field,forming a "closed loop" of anti-commercial bribery in the Internet field that is highly effective in linking "enterprise internal controladministrative enforcement-criminal sanctions".