The 19th Congress of the Communist Party of China (“19th CPC Congress”) vowed to see the Party self-governance exercised fully and with rigor and manifestoed some important policies in fighting corruptions and bribery.  For example, no place will be out of bounds, no ground left unturned and no tolerance shown in the fight against corruption.  Actions will be taken to “take out tigers”, “swat flies” and “hunt down foxes”.  As such, the giving of a bribe will be cracked down on equally harsh as the taking of a bribe.

In practice, it was not always the case that a bribe giver and taker would equally take the blame and punishment.  One of the reasons is that a bribe taker has power and the final say in dictating if and how the bribery would happen, and deserves more liabilities and harsher punishment.  In addition, a bribe giver could become a witness to a bribery case so that the prosecutor could easily meet his or her burden of proof.  Therefore, a bribe giver could be punished less and sometimes totally exonerated.  

For example, a state-owned automobile manufacturer and its Sino-foreign joint venture were found giving bribes to a high-levelled governmental official of National Development Reform Commission (“NDRC”), Mr. Liu, Tienan.  The SOE manufacturer paid RMB 1.21306 million (US$ 186,655) salary to the son of Mr. Liu from June of 2007 to December of 2012 while the son did not work even one day in its office.  

In addition, the General Manager of the JV proposed Mr. Liu to have the Chairman of the SOE issue a 4s shop license to Mr. Liu so that Mr. Liu could benefit from the not-easy-to-get license.  To make the bribery less obvious, a Mr. Zhang invested RMB 12 million to set up a 4s shop in use of the license that the Chairman issued for the benefit of Mr. Liu.  In the 4s shop, the son of Mr. Liu had “dry shares” up to 30% of the total equity interests.  By “dry shares”, Mr. Liu and his son did not make any contribution of the registered capital to the 4s shop and the name of the son did not show up as a shareholder in the governmental registrar.  Two years later, Mr. Liu’s son cashed out by selling his dry shares to Mr. Zhang and pocked RMB 10 million (US$ 1.54 million) proceeds from the sale.

For the bribery case, the Chairman disappeared for a while most probably for the investigation, but not long the Chairman came back to serve the Chairman of the SOE continuously.

There is another case where an executive of a popular automobile brand name was sentenced to life-time imprisonment for taking bribes or having proceeds from unknown resources as much as RMB 59.77 million (approximately US$ 9.2 million).  For this singular bribe taker, there were 48 companies caught giving bribes including advertisement agencies, PR companies.  However, out of the 48 companies, there were only 10 individuals that were punished criminally.

It is doubtful that a bribe giver should or could be punished equally with a bribe taker.  It seems fair and practical to have those who exchange power with money take more liabilities and harsher punishment.

Licensed to practice law in China and the New York State of the USA., Henry Chen is a senior partner of Beijing Dacheng Law Offices, LLP (Shanghai) (AKA Dentons Shanghai Office).  Henry was the former AP Compliance Director of Ford Motor Company.  Henry is the author of Risk Management of Commercial Bribery in China.  Henry is available at Henry.chen@dentons.cn