Accordingly, any bribery behavior for the purpose of seeking trading opportunities or competitive advantage is either to be administratively punished or even to render the business operator liable to criminal prosecution. It is forbidden to use property or other means to bribe the following units or individuals, (1) the staff of the counterparty of the transaction, (2) the unit or individual entrusted by the counterparty to handle the relevant business, (3) the unit or individual uses its authority or influence to impact the transaction’s counterparty.
For a foreign business operator, who lets the business in China run by the local staffs, must bear in mind that the bribery acts of employees are deemed as the acts of the business operator, Art. 7 paragraph 3. sentence 1. of the Anti-unfair Competition Law. Thus, the bribery acts of employees could bring uncertain legal risks to the operators. To be exempted from such risks, the Anti-unfair Competition law allows the business operators to provide proofs otherwise e.g. the employees´ bribery act is not related to operator´s seeking of trading opportunities or competitive advantage. The question is what kind of evidence could be used as liability exemption´s cause and accepted by a Chinese court. According to the statements of the Anti-monopoly and Anti-unfair Competition Enforcement Bureau of the SAIC, if operators have established reasonable legal and compliance measures which do forbid a bribe and have effectively supervised employees´ acts, they could be exempted from the employees´ acts.
Therefore, to exclude the commercial bribery liability as a business operator in China the following measures must be prepared for 2018:
- Establishing internal anti-bribery rules;
- Establishing internal system to train the employees and supervise the employees´ acts to against any commercial bribery.