Page 128 - 2017 White Paper
P. 128
7 White Paper on the Business Environment in China
first mentioned do not violate the Criminal Law, the financial interests is the commercial bribery offering
supervisor may impose a fine from more than 10, 000 party, while the party accepting such financial interests is
yuan to less than 200,000 yuan in according to the facts, the commercial bribery taking party.
and confiscate the illegal income.”
An employee’s commercial bribery act to seek a
In the Draft, the above Article is amended to: trading opportunity or a competitive advantage for the
“Article 20: Where a business operator engages in business operator shall be considered as the act of the
activities that violate Article 7 of this Law, the supervision operator. Where there is evidence suggesting the bribery
and inspection department shall order it to stop the offered or taken by an employee is against the operator’s
illegal act, and impose a fine of not less than 10 percent interests, such a bribery act shall not be considered as the
but not more than 30 percent of the amount of the act of the operator.”
illegal turnover in light of the circumstances. If the
case constitutes a crime, the business operator shall be Article 7 in the Draft clarifies the definition and
investigated for criminal responsibility according to law.” circumstances of “commercial bribery” once again, and
clarifies when the act of the “commercial bribery” being
In addition, Article 8 of the current law reads that conducted by the employee is considered as the act of the
“operators shall not use money or properties or the other operator. Article 20 in the Draft defines the penalty level
methods to bribe others in order to sell or purchase of the “commercial bribery”, and change the calculation
commodities. It shall be guilty of giving bribe if managers method of commercial bribery fine in the current law to
give a secret commission to the other organizations or indirectly raise the penalty level for “commercial bribery”.
individuals without normal accounting records. It shall be
guilty of taking bribe, if the organizations or individuals This very important Draft law is now subject to
accept secret discounts without normal accounting discussions and suggestions by specialists and the
records. public. The changes suggested, if ultimately approved,
will enormously strengthen the law against unfair
Operators may offer a discount to the others in public, competition in China.
or may pay commissions to middle men in selling or
purchasing commodities. Operators who give discounts Interpretation (II) of the Supreme
to the others or pay commission to the middle man, or People’s Court on Several Issues concerning
the others who take the discount or commission shall the Application of Law in the Trial of Patent
make accounting strictly according to the facts”. Infringement Dispute Cases
In the Draft, the above Article is amended to: Interpretation (II) of the Supreme People’s Court on
“An operator may not engage in the following Several Issues concerning the Application of Law in the
commercial bribery acts: Trial of Patent Infringement Dispute Cases (“Interpretation
· to gain financial interests for its entity, department or (II)”) has 31 articles in total, mainly related to problems
persons in or through public service; among the interpretation of statement of claims,
· operators to offer financial interest without truthfully indirect infringement, defense on standard enforcement,
reflecting that in the contracts or the accounting defense on legal origin, the cessation of infringement,
documents; or the calculation of the amount of compensation and the
· to offer or promise to offer financial interests to influence of the patent invalidation on tort trials.
a third party who exercises influence on transaction,
thereby infringing upon the lawful rights and interests of 1. Provide the System of Indirect Infringement on
other business operators or consumers. Patent
‘Commercial bribery’ mentioned in this law refers to Interpretation (II), Article 21 reads that “where any
when an operator offers or promises to offer financial party, fully aware that the relevant product is exclusively
interests to its trading party or a third party that may used for materials, equipment, parts and components or
exercise influence on the transaction so as to induce intermediates, among others, that exploits the patent and
them to provide a trading opportunity or a competitive provides such product to any other party for the purpose
advantage. The party that offers or promises to offer
128
first mentioned do not violate the Criminal Law, the financial interests is the commercial bribery offering
supervisor may impose a fine from more than 10, 000 party, while the party accepting such financial interests is
yuan to less than 200,000 yuan in according to the facts, the commercial bribery taking party.
and confiscate the illegal income.”
An employee’s commercial bribery act to seek a
In the Draft, the above Article is amended to: trading opportunity or a competitive advantage for the
“Article 20: Where a business operator engages in business operator shall be considered as the act of the
activities that violate Article 7 of this Law, the supervision operator. Where there is evidence suggesting the bribery
and inspection department shall order it to stop the offered or taken by an employee is against the operator’s
illegal act, and impose a fine of not less than 10 percent interests, such a bribery act shall not be considered as the
but not more than 30 percent of the amount of the act of the operator.”
illegal turnover in light of the circumstances. If the
case constitutes a crime, the business operator shall be Article 7 in the Draft clarifies the definition and
investigated for criminal responsibility according to law.” circumstances of “commercial bribery” once again, and
clarifies when the act of the “commercial bribery” being
In addition, Article 8 of the current law reads that conducted by the employee is considered as the act of the
“operators shall not use money or properties or the other operator. Article 20 in the Draft defines the penalty level
methods to bribe others in order to sell or purchase of the “commercial bribery”, and change the calculation
commodities. It shall be guilty of giving bribe if managers method of commercial bribery fine in the current law to
give a secret commission to the other organizations or indirectly raise the penalty level for “commercial bribery”.
individuals without normal accounting records. It shall be
guilty of taking bribe, if the organizations or individuals This very important Draft law is now subject to
accept secret discounts without normal accounting discussions and suggestions by specialists and the
records. public. The changes suggested, if ultimately approved,
will enormously strengthen the law against unfair
Operators may offer a discount to the others in public, competition in China.
or may pay commissions to middle men in selling or
purchasing commodities. Operators who give discounts Interpretation (II) of the Supreme
to the others or pay commission to the middle man, or People’s Court on Several Issues concerning
the others who take the discount or commission shall the Application of Law in the Trial of Patent
make accounting strictly according to the facts”. Infringement Dispute Cases
In the Draft, the above Article is amended to: Interpretation (II) of the Supreme People’s Court on
“An operator may not engage in the following Several Issues concerning the Application of Law in the
commercial bribery acts: Trial of Patent Infringement Dispute Cases (“Interpretation
· to gain financial interests for its entity, department or (II)”) has 31 articles in total, mainly related to problems
persons in or through public service; among the interpretation of statement of claims,
· operators to offer financial interest without truthfully indirect infringement, defense on standard enforcement,
reflecting that in the contracts or the accounting defense on legal origin, the cessation of infringement,
documents; or the calculation of the amount of compensation and the
· to offer or promise to offer financial interests to influence of the patent invalidation on tort trials.
a third party who exercises influence on transaction,
thereby infringing upon the lawful rights and interests of 1. Provide the System of Indirect Infringement on
other business operators or consumers. Patent
‘Commercial bribery’ mentioned in this law refers to Interpretation (II), Article 21 reads that “where any
when an operator offers or promises to offer financial party, fully aware that the relevant product is exclusively
interests to its trading party or a third party that may used for materials, equipment, parts and components or
exercise influence on the transaction so as to induce intermediates, among others, that exploits the patent and
them to provide a trading opportunity or a competitive provides such product to any other party for the purpose
advantage. The party that offers or promises to offer
128
