Criminal risk analysis and prevention of bribery of company and enterprise staff
The criminal risk of business investigation network company and enterprise staff taking bribes lies in whether it constitutes the crime of non-state staff taking bribes. Article 163 of the Criminal Law of China stipulates that any staff member of a company, enterprise or other unit who takes advantage of his position to ask for property or illegally accepts property from others and seeks benefits for others, if the amount is relatively large, constitutes the crime of taking bribes by non-state staff. Any employee of a company, enterprise or other unit who, in the course of economic exchanges, takes advantage of his position and, in violation of State regulations, accepts kickbacks and handling charges of various names and takes them into his own possession, if the amount is relatively large, shall constitute the crime of accepting bribes by non-state functionaries. According to Article 10 of the revised Provisions on Filing and Prosecution Standards for Criminal Cases under the jurisdiction of Public Security Organs (II) issued by the Supreme People's Procuratorate and the Ministry of Public Security on April 29, 2022, the amount of the crime is larger than 30,000 yuan, which should be filed for prosecution.
1. The subject of the crime of accepting bribes by non-state functionarians
The subject of the crime of accepting bribes by non-state functionaries is a special subject, which is limited to the staff of companies, enterprises or other units, and persons who do not have such status do not constitute this crime. In practice, personnel engaged in leadership, organization and management in companies, enterprises and other units, such as directors, supervisors, managers, factory directors, financial and accounting personnel and other personnel employed by companies and enterprises to engage in management affairs are non-state functionaries who are at high risk of taking bribes.
(2) The use of the convenience of the position is the conduct condition of the crime
Taking advantage of official facilities means that the perpetrator takes advantage of the facilities granted by or related to his post. Including the following aspects :1, the use of their own supervisor, responsible, handling and other work positions, within the scope of authority, for the briber to seek benefits; 2, use their own power to command, influence subordinates and use other personnel related to the position of authority, for the briber to seek benefits; 3, use, by virtue of authority, position, status control, influence other personnel, or use the authority of other personnel who seek their own duties, to seek benefits for the briber. Although the latter two acts are the use of a third party's authority, they are still based on their own position, position, and status.
Third, active demand and passive acceptance (illegal acceptance) are the two ways of accepting bribes in this crime
Whether it is an active demand or illegal acceptance, the conditions of crime require that the interests of others must be sought, and the interests here include legitimate interests and illegitimate interests. Whether the interests sought for others are eventually realized does not affect the establishment of this crime.
(4) Whether the kickbacks and handling charges received by the staff of the company or enterprise in the course of economic exchanges constitute the determination of this crime
When determining this crime, the act of accepting kickbacks and handling fees in various names in violation of state regulations shall be distinguished from legitimate business acts. In the course of economic transactions, employees of companies and enterprises accept discounts, commissions, etc. in various names, if they are truthfully recorded in the accounts, they shall not violate the provisions of the law and shall not cause criminal risks. The so-called "violation of state regulations" is mainly reflected in Article 8, paragraph 1, of the Anti-Unfair Competition Law: "Business operators shall not use property or other means to bribe in order to sell or buy commodities." Whoever secretly gives kickbacks to other units or individuals outside the accounts shall be punished as offering bribes; Any unit or individual of the other party who secretly accepts kickbacks outside the accounts shall be deemed to have accepted bribes and punished." According to the Interim Provisions on the Prohibition of Commercial Bribery by the State Administration for Industry and Commerce, rebate refers to a certain percentage of the commodity price that is secretly returned to the other party's unit or individual in cash, in kind or by other means when a business operator sells a commodity; In secret, it means that it is not clearly and truthfully recorded in the financial accounts established according to law to reflect the production and business activities or the expenditure and expenditure of administrative undertakings in accordance with the provisions of the financial accounting system, including not recording the financial accounts, transferring other financial accounts or making accounts. Commission refers to the money paid to companies and enterprise personnel in various names, such as information fees, consulting fees, labor fees, hard work fees, and kindness fees, in addition to rebates, in economic activities in violation of state regulations.
4. Sentencing standards for the crime of accepting bribes by non-State functionals
According to the provisions of Article 163 of the Criminal Law, any employee of a company, enterprise or any other unit who, taking advantage of his position, demands money or property from another person or illegally accepts money or property from another person to seek benefits for another person, if the amount involved is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; If the amount involved is huge, or if there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined; If the amount involved is especially huge or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and shall also be fined.
Any employee of a company, enterprise or any other unit who, in economic dealings, takes advantage of his position and, in violation of State regulations, accepts kickbacks or service charges of various names and takes them into his own possession, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; If the amount involved is huge, or if there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined; If the amount involved is especially huge or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and shall also be fined.
The larger amount is more than 30,000 yuan.
5. Risk prevention of bribery crimes against non-State staff
1, in terms of company and enterprise management, personnel governance is a very important content, if the personnel governance is improper, once it constitutes a criminal crime, the company, the relevant personnel of the enterprise in jail, will seriously damage the interests of the unit, resulting in the loss of unit property, reputation, talent and other aspects. Therefore, it is very important to do a good job in compliance management of personnel governance, especially criminal compliance management.
Corporate culture values and rules are consistent with the values and rules of our legal system. Enterprises should establish a culture of integrity and loyalty, promote honesty, integrity and transparency, and prevent corruption and fraud through the establishment and penetration of culture. Enterprises can guide and standardize the daily behavior of employees, enhance the self-discipline consciousness of enterprise personnel, especially senior managers, and prevent criminal risks from the source.
(2) Establish and improve the corporate governance structure, internal control and supervision mechanism, so that relevant personnel can not objectively carry out illegal and criminal acts.
3. Develop a sound employee behavior manual, and organize employee training from time to time. Basic behavioral requirements are put forward for employees through the employee behavior manual, requiring employees to abide by the law, safeguard the interests of the unit, and not engage in illegal activities. The organization of employee training is an important part of the compliance plan of an enterprise. Through training, employees can clearly know the company's norms and systems, make them comply with them, and let them know the clear operation methods.
4. Actively respond to the criminal compliance crisis
For the compliance risks and violations that have been discovered and disclosed, it is necessary to actively respond, and nip the risks in the cradle through remediation and rectification, so as to avoid further losses of property, reputation and talents. The specific approach is that after the occurrence of violations, enterprises should carry out content compliance investigations in a timely manner, disclose violations in a timely manner, save and punish those responsible for violations in a timely manner, and cannot allow the situation to continue to deteriorate, or even cover up through illegal and irregular means. For example, for the conduct of commercial bribery by employees, the employees who have committed crimes should be transferred to judicial disposal after compliance investigation, rather than taking the practice of covering up, let alone destroying the relevant evidence in order to cover up the crime. After the crisis caused by violations, companies and enterprises should also make up for the loopholes and defects in the compliance management system of enterprises, and even actively rectify them, and publicize the executives and employees of enterprises, so that they can learn lessons from them and effectively control the violations.
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