The relevant Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Corruption and Bribery (II) (关于办理贪污贿赂刑事案件适用法律若干问题的解释（二）), issued by the Supreme People’s Court and the Supreme People’s Procuratorate of China, builds on the 2016 interpretation and reflects the development of China’s anti-corruption legislation, including amendments to the Criminal Law and the adoption of the Supervision Law. Its purpose is to ensure the more comprehensive, accurate and uniform application of provisions on corruption-related offences and to establish standards for qualification and sentencing.
One important area covered by the Interpretation is the clarification of liability standards for corruption offences in the private sector.
Thus, in the context of corruption offences involving legal entities, the Interpretation sets monetary thresholds for such offences as the acceptance of bribes by an organisation, bribery of an organisation, and bribery committed on behalf of an organisation. Depending on the offence and the payer, the thresholds range from RMB 200,000 to RMB 400,000, and may be reduced to RMB 100,000 or RMB 200,000 where aggravating circumstances are present.
With regard to corruption offences committed by individuals in the private sector, the Interpretation provides that the standards for qualification and sentencing for persons who are not “state functionaries” in cases involving the acceptance of bribes, giving of bribes, occupational embezzlement and misappropriation of an organisation’s funds should be determined by analogy with the corresponding offences in the public sector. This approach means that private companies receive a higher level of criminal-law protection against misconduct by employees and managers, while corporate abuses will be assessed according to standards comparable to those applied in the public sector.
In addition, the document clarifies the distinction between personal and corporate liability: if property is formally received on behalf of an organisation but is in fact appropriated for the benefit of a specific individual, the conduct may be qualified as bribe-taking by an individual; if, however, the bribe is given pursuant to a decision of the organisation and the unlawful benefit accrues to the organisation, the offence of bribery committed on behalf of an organisation applies.
A separate set of provisions is devoted to the valuation of the object of a bribe.
In particular, the Interpretation sets out rules for valuing bribes provided in the form of expected returns, for example those related to shares or equity interests: if the return has already been obtained, the amount of the bribe is determined by the actual benefit received; if not, it is calculated on the basis of the difference between the market price of the relevant asset and the price paid for it by the recipient.
The document also clarifies the rules for valuing property transferred as a bribe. Where the authenticity of property is unclear — including jewellery, jade, paintings, watches and precious metals — an authenticity examination must be carried out; where the value of the property is not obvious, it must be appraised. At the same time, if the item was purchased at the instruction of the bribe recipient, the amount of the bribe is determined on the basis of the actual price paid by the bribe-giver.
The Interpretation also specifies the rules for qualifying mediation in bribery. Mediation covers actions aimed at establishing contact between the requester and a state functionary, coordinating the terms and facilitating the corrupt transaction. If the intermediary simultaneously participates in giving or accepting a bribe, the conduct is qualified under the more stringent rules; if the intermediary fraudulently appropriates the transferred funds, the offence may be qualified as fraud or as accepting a bribe through the use of influence.
Another set of changes concerns illicit enrichment and concealment of assets. The Interpretation establishes thresholds for cases where the property or expenditures of a state functionary clearly exceed their lawful income and the source of the funds cannot be explained. In addition, a separate threshold is set for the concealment of overseas bank deposits: an amount of RMB 3 million or more is considered “significant” for the purposes of criminal-law qualification.
Finally, the document clarifies the rules for handling illegally obtained property. In particular, voluntary return of illegally obtained funds may be taken into account as a mitigating circumstance in sentencing, while illicit proceeds and benefits derived from them are subject to recovery or return. Where it is impossible to recover the original asset, transformed property, the relevant share in commingled property, or other property of equivalent value may be recovered.