Exploring the Determination of the Amount of Bribe Accepted in Equity-Based Bribery Cases

Abstract

With regard to the determination of the actual transfer of dry shares, firstly, it is necessary to determine whether the case belongs to the dry-share type of passive bribery, mainly depending on whether the national staff member who did not make the capital contribution receives the company’s shares, and whether the perpetrator’s purpose of bribery is to obtain the company’s shares and dividends. Secondly, attention should be paid to the judgment of similar situations, such as: low-priced transferee-type bribe is not a transactional bribe but a dry-share-type bribe; in the case of shell transfer-type bribe, the defective or evaded contribution will not affect the determination of the crime of passive bribery. Finally, the determination of the actual transfer of shares should be judged from the substance of the transfer, and cannot be determined simply by whether or not an agreement has been signed. In determining the amount of the bribe, the first step is to determine whether the shares are transferred or not. In the case where the shares have been transferred, the value of the shares shall be used as the amount of the bribe, and the value of the shares shall be determined in a way that is as close as possible to the actual situation of the company. In the case where the shares have not been transferred, the amount of the bribe shall be the actual dividends received. In the case of active bribery, the transfer of the shares or the receipt of the dividends shall be the criterion for the attempt.