刑法修正与单位行贿罪的惩处

Amendment to the Criminal Law and Punishment for the Crime of Bribery by Units

落实“受贿行贿一起查”,必须加大单位行贿罪的惩治力度。《刑法修正案(十二)》对单位行贿罪刑罚结构的调整和直接责任人员法定刑的提高,缓解了单位行贿罪与行贿罪刑罚配置失衡的问题,充足了单位行贿罪的刑罚供给。司法对单位行贿罪的惩治,需要精准把握单位行贿罪的构成要件要素,从出于单位意志以及不正当利益的归属两个方面厘清其与行贿罪的界限,防止个人行贿借单位行贿通道规避处罚。单位行贿罪的法定量刑情节有一定的特殊性,应结合单位犯罪的特点予以适用。单位行贿罪的主体大都是民营企业,单位行贿罪处罚力度的加大同时意味着增加了民营企业和民营企业家的刑事风险。作为惩处和治理企业腐败犯罪的一种替代方式,企业合规改革在惩治单位行贿罪中应该继续发挥作用,司法应鼓励企业建立预防行贿的合规机制,对符合企业合规改革条件的涉案企业进行合规整改。在合规整改过程中,对涉案企业予以刑事政策上的激励,实现对单位行贿治罪和治理的统一。

To implement the"investigating bribery and corruption together",it is necessary to increase the punishment for bribery crimes committed by units.The statutory sentence for unit bribery stipulated in the original Criminal Law was relatively low,resulting in low criminal costs and insufficient punishment for unit bribery.The"Amendment XII to the Criminal Law"has adjusted the penalty structure for the crime of bribery by units,from the original configuration of a statutory penalty to a second penalty.And the statutory maximum punishment for personnel directly responsible for unit bribery has been increased,from the original maximum sentence of 5 years imprisonment to 10 years imprisonment.This has alleviated the problem of imbalanced punishment allocation between unit bribery crimes and bribery crimes,and provided sufficient punishment supply for unit bribery crimes.One of the difficulties in the judicial determination of unit bribery is how to draw the boundary between the crime of unit bribery and the crime of bribery.There are many misunderstandings in the distinction between the two.Whether bribery is done"in the name of the unit"and whether the bribery funds"come from the unit"are not the decisive elements of the boundary between the two.The key to distinguishing the two is whether the bribery is motivated by the will of the unit or individual,and whether the improper benefits belong to the unit or individual.Bribery under the leadership of the actual controller,person in charge or member of the unit needs to analyze the attribution of improper benefits.Where unlawful gains obtained as a result of bribery are owned by individuals,they shall be found to be individual bribery.The statutory leniency of the crime of bribery also applies to the crime of unit bribery.However,in specific application,it needs to be applied in combination with the characteristics of unit crimes.Although the unit does not take the initiative to surrender,voluntarily confesses the unit's bribery behavior before the supervisory authority files the investigation,it may be given a lighter or reduced punishment in accordance with Paragraph 2 of Article 390 of the Criminal Law.For the crime of unit bribery,the relationship between the unit involved and the person directly responsible for the crime is a joint crime,and the division of principal and accessory between the unit and its members does not rule out the possibility.In the case of multiple directly responsible persons participating in the same crime,if there is communication of criminal intent,the establishment of a joint crime should be affirmed.If the principal and the accomplice can be distinguished,the principal and the accomplice should be distinguished.The main body of unit bribery is mostly private enterprises,and the increase in punishment for unit bribery also means an increase in criminal risks for private enterprises and private entrepreneurs.As an alternative way to punish and govern corporate corruption crimes,corporate compliance reform should continue to play a role in punishing unit bribery crimes.The judiciary should encourage enterprises to establish compliance mechanisms to prevent bribery and carry out compliance reforms on the involved enterprises that meet the conditions for corporate compliance reform.In the process of compliance rectification,criminal policy incentives will be provided to the enterprises involved in the case,so as to realize the unity of punishment and governance for unit bribery.