There are two primary laws in
relation to bribery in China: one is Criminal Law; another is Anti-Unfair
Competition Law (“AUCL”). The Criminal
Law provides for criminal liabilities for corruptive bribery; the AUCL provides
for administrative liabilities about commercial bribery (and some other
anti-competitive practices) that is anti-competitive in nature and not severe enough
to be punished under the Criminal Law.
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On December 27, 2017, the Political Bureau of the 19th Central Committee of the Communist Party of China (“CPC”) convened and decided to hold the Second Plenary Session of the 19th Central Committee in January of 2018. One of most important items on the agenda of the plenary session will be to amend the Constitution of China, which is nominally the supreme law of China.
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In-bound bribery is more difficult to detect, so are other internal frauds such as embezzlements, conflict-of-interest transactions, which go hand to hand without exception. The internal frauds could remain “unseen” for a very long time until the time of the “broken arrow”. When that moment comes up, your breath could be taken away, which we can learn from the case study on FAW Group (i.e., the First Auto Work) – one of the earliest and biggest auto manufacturers in China.
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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. One of the reasons is that a bribe taker has power and the final say in dictating if and how the bribery would happen.
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The Whistleblowing Rules encourages whistleblowing on a real name-basis. In practice, the People’s Procuratorates must respond to real-name whistleblowing. No matter if a whistleblowing is made anonymously or not, the People’s Procuratorates shall maintain the confidentiality of the whistleblowings and protect the interests and rights of whistleblowers.
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The National Supervision Commission of China has the power of personnel interview, interrogation, inquiry, investigation, assets freezing, evidence review, sealing and impounding, searching, survey & examination, forensic recovery and examination as well as liuzhi. The close translation of liuzhi or liu zhi (留置) could be compulsory detention, which however is not as exactly as the temporary deprivation of the freedom for administrative punishment or criminal procedure. It is similar to notorious shuanggui or shuang gui (双规)
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For example, in May of 2015, the State Food and Drug
Administration of China (“SFDA”) requested pharmaceutical enterprises to do a voluntary
self-inspection of their clinical data regarding the drugs to be
authorized. Those who do not would face a
more severe punishment. One month later,
20% of 1622 applications were withdrawn.
It seems an open secret that every link of clinical trial is problematic
and it is not surprising at all that clinical trial data could be falsified in
a serious way.
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Network service providers and operators, under the new law, have
confidentiality of user information as their top priority and they are required
to install protection systems for defending user information. Network operators
is a wide umbrella term that includes companies that own networks, manage
networks and provide network services. In addition, they are also required to
provide “technical support and assistance” to government authorities when
required. However, some has cast suspicion on this piece of legislation due to
its ambiguity and harshness.
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