中國大陸商業賄賂防治架構之探討

Legal Analysis on Anti-Business Bribery Framework of Mainland China

中國大陸市場開放後吸引大量外資進駐，少數企業通過向交易夥伴、政府行政人員利益輸送以取得優勢地位。近年來大陸強力肅貪使商業賄賂問題受到重視，政府從公司法、競爭法、刑法多方角度規制商業賄賂；公司法側重董事、經理人忠誠義務，競爭法從公平交易角度出發，刑法則為國家強制力之行使。企業通過商業賄賂雖能獲得短期利益，卻也面臨民事欺詐、商譽損失、行政罰鍰甚至刑事處罰風險。企業經營中難免與公權力機構、商業夥伴維護關係，因此區分合理社交行為與違法賄賂行為極為重要。本文詳述大陸商業賄賂之法治架構與案例分析，闡述外資與臺商須建立防止商業賄賂風險管理機制，此外，臺商在大陸投資經營過程更應重視兩岸法律差異，並依法將折扣佣金入賬、合理進行禮物捐贈、規範招待費與會務費會計細明，期將商業賄賂風險降至最低。

As the market openness in Mainland China, a lot of foreign firms were attracted and stationed in Mainland China which triggered off a few of them tunneling profit to their trading partners, government and their staff members to get the ascendancy in the market. Mainland China effective law enforcement, especially in anti-corruption area and business bribery problem has been taken seriously in recent years. The government is using multiple perspectives to regulate commercial bribery, such as company act, competition act and criminal law. The company act focus on director and manager's fiduciary duty; the competition act puts particular emphasis on fair dealing; and criminal law guarantees coercive force of the state. Even the firms would gain short-term benefits from the commercial bribery, they would face the risk of civil fraud, goodwill damage, administrative penalty and even criminal punishment. During the business management, it is hard to avoid maintaining relationships with authorities and trading partners. Therefore, it is extremely important to differentiate the social actions and illegal bribery. In the investment and management process Taiwanese firms should put a high value on the legal differences between Taiwan and mainland. To enter discount and commission in an account according to law; to donate gifts reasonably; to normalize the accounting details for the entertainment and conference expense; and to keep the risk of business bribery to a minimum.