The "anti-corruption" context of the previous amendments to the Criminal Law

In the past six months, 24 tigers have been beaten and over 340 officials at the department and bureau levels have been investigated and dealt with. Recently, the website of the Central Commission for Discipline Inspection and the National Supervisory Commission released a "anti-corruption half year report", displaying the results of the first half of this year's anti-corruption efforts.

The ancients said, "The defeat of a country is the result of corrupt officials." Corruption is the easiest problem to overthrow political power, and anti-corruption is the most thorough self revolution.

Recently, the draft amendment to the Criminal Law, which mainly focuses on improving the provisions related to bribery and corruption of personnel within private enterprises, was submitted for the first time to the Fourth Session of the Standing Committee of the 14th National People's Congress for review, once again attracting widespread attention from society to the construction of the anti-corruption legal system.

As is well known, since the implementation of the current Criminal Law in 1997, the Standing Committee of the National People's Congress has also passed 11 amendments to the Criminal Law. Among them, the regulations on corruption and bribery have been adjusted multiple times, playing a significant role in the fight against corruption. Let's explore the truth.

On July 25th, the draft amendment to the Criminal Law was submitted for review at the fourth meeting of the Standing Committee of the 14th National People's Congress. Photography/Ma Zengke

From setting up individual chapters to expanding the scope or scope of application, weave a tight and dense network of anti-corruption laws and regulations

On July 1, 1979, the Second Session of the Fifth National People's Congress issued seven laws at once, including the Criminal Law, also known as the "79 Criminal Law.". On March 14, 1997, the Fifth Session of the Eighth National People's Congress voted to pass the fully revised Criminal Law, also known as the "97 Criminal Law".

Unlike the "79 Criminal Law", the "97 Criminal Law" has a separate chapter on the crime of corruption and bribery, and has added charges such as bribery against units, bribery against companies and enterprise personnel, and the crime of privately dividing state-owned assets collectively, as well as the crime of privately dividing and confiscating property collectively. It has also added new types of bribery crimes and revised the conviction and sentencing standards for corruption and bribery crimes.

Entering the 21st century, multiple amendments to the Criminal Law have made modifications to the relevant provisions on corruption and bribery crimes, gradually expanding the scope or subject of application, and promoting the continuous refinement of the anti-corruption system——

The amendment to the Criminal Law passed on June 29, 2006 expanded the scope of commercial bribery crimes to employees of units other than companies and enterprises.

The amendment to the Criminal Law passed on February 28, 2009 added the crime of bribery through the use of influence, expanding the scope of application of bribery from current state employees to two directions: first, expanding to their close relatives and close relationships with them, and second, expanding to their resignation.

The amendment to the Criminal Law passed on February 25, 2011 added the crime of bribery against foreign public officials and officials of international public organizations, and transformed international conventions into domestic legislation through criminal legislation, further aligning with international standards.

Since the 18th National Congress of the Communist Party of China, in the face of the new characteristics and trends of corruption and bribery crimes in practice, the Criminal Law has been revised in a timely manner: from a series of major modifications made to corruption and bribery crimes in the Criminal Law Amendment, to the adjustment of the punishment configuration for non state employees in companies, enterprises, and other units who commit bribery, embezzlement of duties, and misappropriation of funds in the Criminal Law Amendment Draft, to the further improvement of bribery and internal personnel corruption related crimes in private enterprises, constantly weaving a dense network of anti-corruption laws.

From limiting the lenient punishment conditions for bribery crimes to imposing heavier punishments for serious bribery situations, we will increase the punishment for bribery crimes

Bribery and bribery are two sides of the same coin, like two poisonous melons on a vine.

If bribery is not investigated, bribery will continue. Maintaining a high-pressure situation in the fight against corruption, bribery and bribery must be combated together. The Criminal Law Amendment passed on August 29, 2015, in accordance with the decisions and deployments of the Central Committee of the Communist Party of China, has increased the punishment for bribery crimes and strictly restricted the conditions for lenient punishment for bribery crimes. Except for situations where it plays a crucial role in solving major cases, those who voluntarily confessed to bribery before being prosecuted will no longer be exempted from punishment. At the same time, provisions have been added for the crime of bribing specific related parties such as close relatives of state officials, and penalties such as fines and confiscation of property have been added.

The 19th and 20th National Congress of the Communist Party of China emphasized the principle of "investigating bribery and bribery together", and the Second Plenary Session of the 20th Central Commission for Discipline Inspection of the Communist Party of China proposed to "further improve and perfect the laws and regulations for punishing bribery".

"The systematic governance of bribery crimes requires further leveraging the important role of criminal law in promoting the system and mechanism of not daring to be corrupt, not being corrupt, and not wanting to be corrupt." On July 25th, Shen Chunyao, Director of the Legal Work Committee of the Standing Committee of the National People's Congress, pointed out in his explanation of the draft amendment to the Criminal Law that in practice, there is a serious imbalance between the number of bribery cases sentenced during the same period and the number of bribery cases. The proportion of bribe givers who have not been held criminally responsible is too high, and the problem of weak punishment for bribery still exists, which is not conducive to cutting off the causal chain of bribery crimes. It is necessary to further clarify the provisions in the Criminal Law and increase criminal accountability for some serious cases of bribery.

From the current draft content, it can be seen that a provision has been added to impose heavier penalties on the following six types of situations: first, multiple instances of bribery or bribery to multiple individuals; second, bribery by state officials; third, bribery in important national work, key projects, and major projects; fourth, bribery in areas such as organizational personnel, disciplinary law enforcement and judiciary, ecological and environmental protection, finance and finance, safety production, food and medicine, disaster relief, elderly care and social security, education and medical care; fifth, bribery for the purpose of carrying out illegal criminal activities; and sixth, using illegal proceeds for bribery. At the same time, the draft also increases the punishment for unit bribery, unit acceptance, and unit bribery crimes, adjusts and improves the level of punishment, and strengthens criminal punishment.

It can be said that the draft amendment to the Criminal Law is another major revision of the bribery crime based on the amendment to the Criminal Law.

From simply "amount" to "amount+circumstances", adjust the conviction and sentencing standards for corruption and bribery in line with the times

Reasonable conviction and sentencing standards are important benchmarks for punishing corruption and bribery crimes.

Before the promulgation of the Criminal Law Amendment, the conviction and sentencing of corruption and bribery crimes were based on a simple amount standard, which set four basic statutory penalties based on three specific criminal amounts: 5000 yuan, 50000 yuan, and 100000 yuan.

With the continuous development of the economy and society, per capita income and price levels continue to rise. Using a simple amount as the conviction and sentencing standard for corruption and bribery crimes has long been seriously disconnected from the actual social situation. "In two cases, the defendant in the former took bribes of less than 100000 yuan, but took bribes more frequently and mostly demanded bribes, while the defendant in the latter took bribes of up to 100000 yuan, but only for a single bribe. The subjective malignancy and social harm of the former were more serious than those of the latter." A judge from the Beijing First Intermediate People's Court once gave an example that before the amendment to the Criminal Law was introduced, the former could be sentenced for less than 10 years, while the latter must be sentenced for more than 10 years.

The general consensus in the legal and judicial circles is that the amount should be an important reference for the conviction and sentencing of corruption and bribery, but it should not be the only reference. Instead, factors such as the degree of damage to public welfare rights and social harm should be considered simultaneously to shape more flexible conviction and sentencing standards.

This call and idea were ultimately reflected in the Criminal Law Amendment, which changed the original simple "amount" standard to "amount+circumstances" standard, and changed the original fixed amount model to a range model with large, huge, and particularly huge amounts. As a result, the Criminal Law has established more realistic, flexible, and reasonable conviction and sentencing standards for corruption and bribery. It can be said that this is a historic institutional change in advancing the fight against corruption.

The reporter noticed that subsequent amendments to the Criminal Law also involved adjustments to the application of conviction and sentencing. For example, the amendment to the Criminal Law not only increases the overall sentence for the crime of bribery committed by non-state employees, but also adjusts the first statutory sentence from imprisonment of less than five years to imprisonment of less than three years, leaving room for the handling of such crimes with lighter circumstances.

It is worth mentioning that in the previous amendments to the Criminal Law, there is another institutional innovation, which is the addition of special execution measures that allow for life imprisonment for criminals who have been sentenced to death with a suspended execution for major corruption and bribery crimes. "This anti-corruption mechanism directly faces the criticized abnormal phenomena such as' court sentencing and backdoor release 'in reality. Some experts say that the introduction of a lifetime imprisonment mechanism in the criminal law is a reasonable balance between the cautious use of the death penalty and the high-pressure' anti-corruption 'background. From depriving life to' sitting at the bottom of prison ', it not only conforms to the trend of legal civilization in the reform of the death penalty system, but also releases the determination to fight corruption, which can more effectively punish corruption and avoid social misunderstandings. The integration of this is precisely the legislative concept of combining leniency and severity.".

From adjusting penalty allocation to increasing breach of trust crimes and strengthening equal protection for private enterprises

Individual, private and other non-public sectors of the economy are important components of the socialist market economy.

Over the past 40 years of reform and opening up, the private economy has played an irreplaceable role in revitalizing the market, improving people's livelihoods, creating wealth, and promoting innovation, from small to large and from weak to strong. At the same time, the corresponding problem of corruption and crime is becoming increasingly prominent.

In order to strengthen the equal protection of the non-public economy, the amendment to the Criminal Law increases the punishment for crimes that infringe on the property of private enterprises that occur within private enterprises. It also amends charges such as infringement of trade secrets, misappropriation of funds, embezzlement of duties, and bribery of non-state employees. By adjusting the punishment configuration, implementing the spirit of equal protection of property rights, further strengthening the protection of enterprise property rights and optimizing the business environment.

On July 19, 2023, the Opinions of the Central Committee of the Communist Party of China and the State Council on Promoting the Development and Growth of the Private Economy were released. The opinions have made a series of new major deployments to promote the development and growth of the private economy, proposing to "improve the legal environment for equal protection of all types of ownership economies, and create good and stable expectations for the development of the private economy.".

As a result, the criminal law protection of the private economy has entered a "deep water zone". "The amendment to the Criminal Law this time aims to improve the provisions on corruption related crimes committed by internal personnel of private enterprises, targeting key personnel in internal positions of enterprises who infringe upon the interests of enterprises and entrepreneurs due to corruption. According to Wang Aili, the person in charge of the Criminal Law Department of the Standing Committee of the National People's Congress, the draft amendment to the Criminal Law adds crimes related to intentional breach of trust and damage to the interests of private enterprises by internal personnel of private enterprises. It also defines three types of" damaging enterprises and enriching private interests "behaviors that occur among internal personnel of private enterprises, including illegal operation of similar businesses, illegal profit for family and friends, low price stock conversion for personal gain, and asset sales.". This modification will further increase the protection of private enterprise property, provide legal means for private enterprises to effectively prevent and punish internal corruption crimes, and actively respond to the concerns of entrepreneurs.

As a weapon of the rule of law in the fight against corruption, the legislative amendment work in anti-corruption countries has achieved remarkable results, but there is still a long way to go and a long future ahead.