Welcome to the latest issue of The Anti-Fraud Network Newsletter:

Letter from the Editor, July 2014

In tNick Burkillhe second of our two-part series on giving gifts in China, Carl Hinze looks at the rules and traditions surrounding the cultivation of bao (“social reciprocity”), through gift giving. This month, we look closely at the gift-giving rules that apply to PRC Government officials.  With penalties for officials as severe as death by firing squad, businesses need to ensure gifts given to give “face,” i.e., to show respect, to the recipient and increase the “face,” i.e., raise the status, of the giver are well within the bounds of what is legally acceptable and can be proved to be so.

This is our last newsletter until September. I would like to wish all our members and readers a very happy summer.

We are always interested in articles and book reviews written by AFN members and readers. If you would like to contribute to the AFN newsletter or the website in September, please contact us at info@antifraudnetwork.com.

Nick Burkill

In This Issue:

One person’s gift, another person’s bribe: The challenge of giving gifts in China, Part II

Carl Hinze 2014

In the second of our two-part series on giving gifts in China, we look at the rules and traditions surrounding the cultivation of bao (“social reciprocity”), through gift giving. This month, we look closely at the gift-giving rules that apply to PRC Government officials.  With penalties for officials as severe as death by firing squad, businesses need to ensure gifts given to give “face,” i.e., to show respect, to the recipient and increase the “face,” i.e., raise the status, of the giver are well within the bounds of what is legally acceptable and can be proved to be so.  

Bribery of officials

In respect of bribery of officials, Articles 389 to 391 and Article 393 of the PRC Criminal Law prohibit (regardless of whether the perpetrator is an individual or entity) giving state officials, state agencies, state-owned enterprises and civil organisations bribes in order to receive improper benefits. In order to constitute the offence of “giving bribes” the following criteria must be met:

  • There must be a payment in the form of property or unlawful kickbacks or procedural fees
  • The recipient must be a state official, state agency, state-owned enterprise, unit (an organisation) or civil organisation
  • The purpose must have been to receive improper benefits (emphasis added).

According to a Notice issued by the Supreme People’s Court and the Supreme People’s Procuratorate in 2008, “property” in this context is defined as

Either money or physical objects, and includes proprietary interests that can be measured in monetary terms, such as the provision of housing renovations, membership cards and gift cards (coupons) carrying monetary value, travel expenses, etc.

The Notice also seeks to fill a gap in the Criminal Law by clarifying the meaning of “seeking improper benefits” in the context of the crime of bribery contemplated in Article 389 of the Criminal Law. According to the Notice, seeking improper benefits refers, rather vaguely, to circumstances where the giver of a bribe seeks a benefit that is in violation of laws, regulations, rules or policies, or where the giver of the bribe requests the receiver of the briber to provide help or convenience in violation of laws, regulations, policies or industry norms. Continue reading

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The Anti-Fraud Network is a network of professionals who specialise in the prevention and investigation of fraud and white collar crime, and the pursuit of claims arising out of the theft or other dishonest appropriation of assets, corruption, misuse of confidential information or similar breaches of duty. Recovering the proceeds of fraud and corruption is one of the truly global problems facing organisations today. Proceeds rarely stay in the country where they have been stolen. For organisations to recover stolen or corrupt assets they need access to lawyers and professionals specialising in their recovery across the world.

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The Anti-Fraud Network has been Highly Commended by the Financial Times in the 2008 FT Innovative Lawyers Awards Report

UK Bribery Act Interview

Award

Chambers and Partners LogoNicholas Burkill of Dorsey & Whitney is an expert in bribery and corruption matters, and is widely considered by sources to be an authority on the implications of the new Bribery Act. Sources describe Burkill as “extremely personable, very bright, client-focused and always looking for the best commercial solutions.”

Chambers 2011

Award

The Legal 500 - United KingdomThe Dorsey team is an excellent choice for tax and fraud disputes, and group head Nicholas Burkill is ‘an enormously experienced fraud litigator, with great depth of knowledge; intelligent and hardworking, with an excellent sense of humour. One of the best around’.

Legal 500 2010

Dorsey & Whitney’s practice head Nicholas Burkill is a ‘cool-headed and determined litigator’.

Legal 500 2011