Introduction

Corporate executives accepting kickbacks from suppliers in economic transactions is a common form of commercial bribery. The focus of controversy in such cases is often not on“Did you receive the money"The”And in“Does receiving money necessarily constitute a crime”In practice, the most common defense used by the perpetrator and their defense is: although the money was received“Not seeking any benefits for the supplier”It neither constitutes bribery nor should criminal responsibility be pursued. The validity of this defense is directly related to the criminal characterization of the behavior. This article combines the Criminal Law, judicial interpretations, and judicial precedents to clarify the issue of convicting non-state-owned enterprise executives for accepting kickbacks from suppliers.

1、 Accusation positioning: bribery of non-state personnel

Firstly, it is necessary to clarify the choice of charges. Senior executives of non-state-owned enterprises do not fall under the category of state employees as referred to in Article 93 of the Criminal Law. Their act of accepting property by taking advantage of their position does not constitute the crime of accepting bribes under Article 385, but rather the crime of accepting bribes as non-state employees under Article 163.

The second paragraph of Article 163 is aimed at the situation in this case.“Employees of companies, enterprises or other units who, in economic transactions, take advantage of their positions and violate national regulations by accepting kickbacks or handling fees in various forms, which belong to themselves, shall be punished in accordance with the provisions of the preceding paragraph.”Based on this, accepting kickbacks and handling fees“Belonging to individuals”Listed as an independent type of behavior and directly included in the scope of punishment for this crime.

II“Seeking benefits for others”Broad grasp of requirements

The focus of disputes in kickback type cases is on“Seeking benefits for others”In terms of grasping this constituent element. Legal InterpretationArticle 13 of [2016] No. 9 provides a very broad interpretation of this, stipulating that if one of the following situations exists, it shall be deemed as“Seeking benefits for others”Establishment: (1) Those who actually or promise to seek benefits for others, including implied promises; （2） Knowing that others have specific requests; （3） Not being entrusted during the performance of duties, but later accepting property based on the reason for the performance.

The key to this explanation is that,“Seeking benefits”It is not required for the perpetrator to actually do things for the principal and obtain actual benefits, only to possess“commitment”“Knowing the requested matters”“Received afterwards”One of the three situations. In terms of kickbacks, suppliers providing kickbacks inherently assume the purpose of obtaining or maintaining transactions, seeking price discounts, facilitating acceptance and release, and excluding competitors; Executives who receive kickbacks are usually presumed to have received them“Knowing that there are specific requests”Or constitute an implied promise. kickback“Secretly outside the account”The essence of return already contains the consideration relationship of power money transactions, which makes“Seeking benefits for others”The act of receiving kickbacks itself is covered. This is exactly“Not seeking profit”The fundamental reason why the defense is difficult to establish in the context of kickbacks.

3、 The unified negation of judicial practice

At the level of precedent, the court's negative attitude towards this defense is highly consistent.

Guiding Cases of the Supreme People's CourtThe rule established in Case No. 3 (Pan Yumei, Chen Ning bribery case) is that seeking benefits for others includes three stages: commitment, implementation, and realization, as long as one of them is met, it is established; Those who knowingly accept money or gifts from others for specific requests shall be deemed to have promised to seek benefits for others. Whether they actually seek benefits or have obtained benefits does not affect their conviction.

The case closest to this case is the Ma Guolin case(2018) Jing 0101 Xing Chu No. 135: The defendant has not yet approved the contract or increased the profit sharing ratio in the previous stage, and the court still finds that“Despite knowing the purpose of the request, he still accepted it”Regarded as a promise for profit, bribery is still recognized at this stage. Chen Bicheng caseIn (2014) Dong Xing Yi Chu Zi No. 351, the defendant clearly stated that he did not increase the amount of work after receiving bribes, and the court held that“Although there is no clear response regarding the acceptance of gifts, as long as they are not refused, it is considered an implied commitment”Similarly convicted. In addition, the cases of Xia, Wen Huaixiang, Zhao Yongqing, etc“Not seeking profit”“Collecting money is unrelated to one's position”“Technical remuneration”All defenses have been rejected.

It can be seen that in cases of accepting kickbacks,“Not seeking benefits for suppliers”This proposition has been almost universally rejected in judicial practice.

4、 Still available for prosecution and leniency

“Not seeking profit”Although the defense is difficult to establish, there are still debatable boundaries to the conviction, and the focus of the defense should shift to the following directions:

Firstly, the amount. Receiving kickbacks but not reachingthreeA sum of ten thousand yuan does not constitute a criminal offense and may only bear civil, administrative, and internal responsibilities.

Secondly, the attribution of funds. Article 163, Paragraph 2“Belonging to individuals”As a requirement; If the funds actually enter the unit account, it may change the nature and need to be verified with evidence such as bank statements.

Thirdly, return and submit. If the recipient voluntarily and promptly returns or submits the item without being investigated, it may affect the conviction or serve as a mitigating circumstance for punishment.

Fourthly, the association of authority. If there is no connection between the acceptance and the convenience of the position, it can be argued as a constituent element, but there must be sufficient evidence to support it.

It should be noted that the direction of subject identity must be cautious: if the perpetrator actually engages in official duties, it may actually escalate to the crime of bribery (Article 163 (3)), so it cannot be used as a mitigating factor.

Conclusion

Private enterprise executives accepting kickbacks from suppliers generally constitute the crime of non-state personnel bribery,“Not seeking benefits for suppliers”The defense usually cannot be established. The real defense space is not there“Is there any profit seeking”In terms of amount, ownership of funds, refund time, and authority correlation. Even if it does not ultimately constitute a criminal offense, accepting kickbacks still violates the duty of loyalty under Articles 147 and 148 of the Company Law. The proceeds obtained should belong to the company and may face administrative responsibilities under the Anti Unfair Competition Law, as well as termination and accountability from the company.