(a) giving or receiving kickbacks kickbacks refers to the operator to sell goods, services in the off-the-books secretly in cash, in kind or other ways to return to the other unit or individual a certain percentage of the price of goods and services. Kickbacks are one of the most common and typical forms of commercial bribery, which has two characteristics: First, "off the books in secret", meaning that it is not set up in accordance with the law to reflect its production and business activities or administrative and public funds on the financial accounts in accordance with the provisions of the financial accounting system clearly and truthfully recorded, including not recorded in the financial accounts, transferred to other financial accounts or false accounts. financial accounts, transferring to other financial accounts, or making false accounts, etc. Second, a certain percentage of goods (services) to discount. If the gift is not cash, but property, as long as it is discounted according to the proportion, it can be recognized as kickbacks. Kickbacks are given to most of the other unit or the other unit's supervisors, managers, but sometimes may also be to facilitate the transaction of other people. (B) under the guise of advertising, publicity, promotional costs, consulting fees, sponsorship fees, etc., to pay or receive a variety of economic benefits which is second only to kickbacks outside of a more common means of bribery. The difference between it and the rebate is: it is not necessarily linked to the price of goods (services), can occur in all stages of the transaction behavior. Off the books secretly is purchased into the elements of kickbacks, but not the elements of commercial bribery. Just because the rebate is a kind of commercial bribery, but not the only one, and therefore in the determination of commercial bribery, do not have to be off the books as a necessary element, which is more common in the field of hypermarkets, stores. Supplier by paying in fact did not occur business advertising, consulting fees, promotional fees, etc. to obtain the right to sell in the mall, crowding out other competitors, access to exclusive sales rights. (C) to reimburse various expenses, provide travel, entertainment and other ways of commercial bribery in order to enlist the other side of the operator to strengthen the emotional investment, but also in order to better circumvent the law, the operator also used money other than indirect bribery. For example, a medical equipment company invites hospital-related personnel to travel abroad in the name of investigation, with all expenses borne by it. (D) violation of the attached cash and goods behavior attached gift refers to the operator in market transactions, in order to induce the transaction counterparty with the transaction, incidental to the latter to provide cash and goods behavior. Provide gifts is the operator, to accept gifts is as the counterparty of the transaction of the other party operator or consumer. Gifts are attached to the goods, including cash and goods, and are given to the buyer together with the goods upon the completion of the transaction. Within the scope permitted by Chinese law, the operator's gifts to consumers are legal. The act of giving small advertising gifts between operators in commodity transactions is also in line with commercial practice and legal provisions. However, except for small advertising gifts, the law prohibits the attachment of gifts between operators. Gifts of cars, internet cards, shopping coupons, etc., which are often adopted by some operators in their business, violate the principle of honesty and good faith and belong to the behavior of commercial bribery. (E) Illegal commissions Commissions refer to the labor remuneration given by operators to intermediaries with legal business qualifications who provide services for them in market transactions. Acceptance of illegal commission is mainly manifested in the secret to give, the two sides are not accounted for, the intermediary generally do not have legal business qualifications, that is to say, the intermediary does not have a business license or business license does not have the corresponding scope of business, even if the account, but also not recorded in the "labor income" account, and recorded in the "Other Income Other Income". It is quite obvious that the insurance company pays expenses in the name of labor fee to the unit that does not have the qualification of insurance agency. In addition, the payment of kickbacks and other means of commercial bribery to promote low-quality goods at high prices or counterfeit goods, but also the "Anti-Unfair Competition Law" to adjust the content of such behavior to be punished together.
Legal basis
Article 8, paragraph 1 of the Anti-Unfair Competition Law stipulates: "Operators shall not use property or other means of bribery in order to sell or purchase goods. Anyone who secretly gives rebates to the other unit or individual off the books shall be punished for bribery; and any other unit or individual who secretly receives rebates off the books shall be punished for bribery. An operator who sells or buys goods may give discounts to the other party in an explicit manner and may give commissions to intermediaries. Operators give each other discounts, to the middleman commission, must be truthfully accounted for."