On January 25, 2022, the Tencent Anti Fraud Investigation Department released the "Tencent Group Anti Fraud Notification", stating that Zhang Meng, the leader of the PCG film and television content production department, was suspected of using his position to seek benefits for suppliers and collecting supplier benefit fees. His behavior violated the "Tencent High Voltage Line" and was dismissed. At the same time, he was transferred to the public security organ for suspected crimes. It is reported that Zhang Meng is a producer at Tencent Video Studio Tianpeng and has participated in many popular dramas such as "You Are My Glory", "Skyscraper", and "Let's Listen to Fengming".

Although Zhang Meng's behavior has not yet been clearly characterized at the legal level in the current public information, this incident has initially revealed many legal issues. Taking this opportunity, we will briefly introduce the identification and performance of commercial bribery, the boundaries between illegality and crime, and the trend of the case. At the same time, we call on Internet companies to contribute their own efforts to market compliance regulation.

Event context review

February 2, 2021

According to the "Tencent Group Anti Fraud Notification" released by Sunshine Tencent, from the fourth quarter of 2019 to the time of issuance, the Tencent Anti Fraud Investigation Department discovered and dealt with more than 60 cases of violating the "Tencent High Voltage Line", 100 people were dismissed for violating the "Tencent High Voltage Line", and more than 40 people were transferred to the public security organ for handling due to suspected crimes. Tencent also listed 37 external enterprise entities that would never cooperate in the notification.

October 26, 2021

The news of the arrest of Tencent video producer Zhang Meng spread quickly. It has been reported that it is involved in the legacy drama "Ghost of the New Qiannv" starring Zheng Shuang (now renamed "Just Ask This Life to Love Cangming"). On the 26th, Tencent confirmed that Zhang Meng was involved in the case and denied that Zhang Meng was involved in a Yin Yang contract.

October 27, 2021

Producer Zhang Meng has been investigated by the public security authorities for suspected violations of the law.

January 25, 2022

The Anti fraud Notification of Tencent Group issued by the official WeChat official account of Tencent Anti fraud Investigation Department, Sunshine Tencent, shows that in 2021 alone, Tencent Anti fraud Investigation Department will find and investigate more than 50 cases of violating the "Tencent High Voltage Line", 16 of which involve commercial bribery, job occupation and other acts, nearly 70 people were dismissed for violating the "Tencent High Voltage Line", and more than 10 people were transferred to the public security organ for handling for suspected crimes, Including producer Zhang Meng.

What is commercial bribery?

It is understood that among the 16 typical cases disclosed by Tencent, 8 cases of corruption and fraud involve commercial bribery involving the collection of benefits from external personnel such as suppliers.

What is commercial bribery? Commercial bribery is a typical act of unfair competition, widely existing in domestic and foreign business circles, with a long history. Its essence is a form of bribery, but it is somewhat different from other forms of bribery. Generally speaking, it refers to the improper behavior of an operator to gain an advantageous competitive position by secretly giving commercial rebates and other benefits.

The Boundary between Commercial Bribery Crime and Non crime

Commercial bribery is an illegal act of unfair competition, but not all commercial bribery acts constitute criminal offences. In this case, it is an illegal commercial bribery act for Zhang Meng to collect benefits from suppliers and seek benefits for them. Does he violate the criminal law? How to divide the line between illegal and criminal commercial bribery?

The current criminal law in China clearly defines "property" as the object of bribery crimes, while the relevant provisions on commercial bribery include property and "other means". Article 7 of the 2008 Notice of the Supreme People's Court and the Supreme People's Court on Printing and Distributing the Opinions on Several Issues Concerning the Application of Law in Handling Commercial Bribery Criminal Cases (hereinafter referred to as the "Opinions") interprets property as a commercial bribe as a property benefit that can be calculated in monetary terms. Therefore, commercial bribery committed by means other than property that cannot be calculated in monetary terms is often an administrative offense and is difficult to identify as a commercial bribery crime in the criminal law.

The criminal law stipulates that the subjective purpose of a briber in a bribery type crime is "to seek illegitimate benefits", while "the operator is selling or purchasing goods", which does not have an illegitimate purpose. Article 12 of the 2012 Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Bribery stipulates that "seeking illegitimate benefits" in bribery crimes refers to the fact that the benefits sought by the briber violate laws, regulations, rules, and policies, or require state personnel to violate laws, regulations, rules, policies, and industry norms, Provide yourself with help or convenience. Those who violate the principles of fairness and justice and seek competitive advantage in economic, organizational, personnel management, and other activities should be recognized as "seeking illegitimate benefits.". However, in practice, the judgment on seeking competitive advantage is relatively broad, and if it cannot be proved that the commercial bribe giver has the purpose of seeking illegitimate benefits, it cannot constitute a bribery crime.
The thresholds for the amount involved are different. Whether or not to reach the threshold of the amount involved in the case is the key element to define the boundary between the crime and non crime of commercial bribery. According to Article 163 of the Criminal Law of the People's Republic of China (hereinafter referred to as the "Criminal Law"), the crime of accepting bribes by non state functionaries shall be filed with a case amount of 60000 yuan as the standard. A case below 60000 yuan shall not be considered a criminal case.

Zhang Meng's Suspected Crimes and Penalties

The author believes that although the public security organs have not disclosed too much information about this, there are still traces to follow in determining Zhang Meng's behavior. Based on the information currently available on the Internet, Zhang Meng is highly likely to be involved in the crime of accepting bribes by non State functionaries as stipulated in Article 163 of the Criminal Law.

According to Article 11 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery (hereinafter referred to as the "Interpretation"), the starting point for the number of "large amounts" and "large amounts" in the crime of bribery committed by non State functionaries shall be implemented in accordance with the two and five times the corresponding amount standards specified in this Interpretation for the crime of bribery. Since the criteria for "large amount" and "large amount" of bribery crimes are 30000 yuan and 200000 yuan, the starting points for "large amount" and "large amount" of bribery crimes committed by non-state personnel should be 60000 yuan and 1 million yuan, respectively. From the information posted online, the amount of money involved in this case may exceed 2 million yuan, which may have reached the standard of huge amount. Once Zhang Meng is identified as guilty of this crime, he may face imprisonment of not less than three years but not more than ten years, and may also be fined.
Reflection and Enlightenment on the Zhang Meng Case

Commercial bribery often coexists with the market economy. In recent years, commercial bribery crimes have shown an upward trend, and have been listed as key targets of the state to combat. In judicial practice, when dealing with such cases, the principle of modesty and restraint in criminal law should be observed, not only to correctly grasp the boundaries between crime and non crime, but also to analyze the constitutive elements of behavior; We should also comprehensively evaluate the social harm caused by the behavior, and strictly grasp the circumstances of conviction and sentencing. To sum up, cracking down on commercial bribery is essentially to regulate the power and money transactions between operators and those in power. For illegal acts that are not subject to criminal law regulations, administrative measures should be mainly used to sanction them.

In addition, as the main body of the new market, internet operators should establish internal prevention mechanisms, establish strict prevention and control mechanisms such as "Tencent High Voltage Line", use legitimate means to enhance their competitiveness, and resolutely resist unfair competition chaos such as commercial bribery.