Legal Analysis
In China's current health system, hospitals have public hospitals and private hospitals, hospital staff have quasi-state staff and non-state staff, the behavior of medical staff have management behavior and labor behavior. Therefore, whether or not the act of accepting pharmaceutical rebates by medical staff constitutes the crime of commercial bribery depends on the nature of the hospital and the nature of the staff's behavior. Medical personnel engaged in managerial acts in public hospitals, due to their status as quasi-state staff, their acts are official acts, so their acts of accepting kickbacks constitute the general crime of bribery rather than the crime of commercial bribery, and thus they cannot become the subject of the crime of commercial bribery. If the managers of non-state-owned medical institutions accept kickbacks, no matter from the point of view of their identity or the nature of their behavior, they all meet the elements of the subject of the crime of commercial bribery, and thus they are the subject of the crime of commercial bribery. In addition, if the medical institutions accept kickbacks are not accounted for, can also constitute the subject of commercial bribery.
Legal basis
The Criminal Law of the People's Republic of China Article 163 of the company, enterprise or other units of the staff, the use of the convenience of their positions, solicitation of other people's property or unlawful acceptance of other people's property, for the benefit of other people, the amount of a large amount of money, shall be sentenced to less than three years' fixed-term imprisonment or detention, and shall be punished by a fine. If the amount is huge or there are other serious circumstances, the offender shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and fined; if the amount is particularly huge or there are other particularly serious circumstances, the offender shall be sentenced to fixed-term imprisonment of not less than ten years but not more than life imprisonment and fined. A staff member of a company, enterprise or other unit who, in the course of economic dealings, takes advantage of the convenience of his position and, in violation of state regulations, accepts kickbacks or handling fees of various kinds in various guises for his own personal benefit shall be punished in accordance with the provisions of the preceding paragraph. Personnel engaged in official duties in state-owned companies, enterprises or other state-owned units and personnel appointed by state-owned companies, enterprises or other state-owned units to engage in official duties in non-state-owned companies, enterprises as well as other units who engage in the behavior of the preceding two paragraphs shall be convicted and punished in accordance with the provisions of Articles 385 and 386 of this Law.