China’s anticorruption campaign has focused almost exclusively on the so-called “demand side” of bribe transactions—the public officials who request or accept bribe payments. Indeed, it is quite common for a bribe-taking government official to be prosecuted while the bribe giver receives no punishment at all (see here, here, and here). Overall, China has convicted and punished almost four times as many bribe-takers as bribe-givers, and only 1% of bribe-givers have faced criminal prosecution.
This lopsided emphasis on the demand side of bribery is mostly caused by a odd asymmetry in China’s Criminal Law. According to Article 390, bribe givers who confess their crimes to the authorities before the case is handed over the procuratorate office for criminal prosecution are eligible for leniency, including outright exemption from punishment, but there is no equivalent provision for bribe takers. (There are some general provisions in Chinese criminal law that afford criminal defendants mitigated punishment, but these sections are applicable only when suspects voluntarily turn themselves in before any investigation has commenced, or provide sufficiently valuable service in uncovering other criminal misconduct. These provisions are not as generous as Article 390.) Due to the asymmetric structure of Article 390, coupled with the fact that bribery is often hard to uncover without the cooperation of one of the parties involved in the transaction, China’s principal anticorruption agency, the Central Commission for Discipline Inspection (CCDI), has cut deals almost exclusively with bribe givers, offering them immunity pursuant to Article 390 in exchange for their assistance in going after the corrupt officials.
This asymmetry has contributed to criticism that China is too lenient on bribe givers. Some critics have argued that China should eliminate the disparate treatment of bribe givers and bribe takers by abolishing Article 390 altogether, thus making it equally difficult for bribe givers and bribe takers to receive leniency (see, for example, here and here). While China has not gone that far, it has taken steps in this direction, for example by amending Article 390 back in 2015 to narrow the set of bribe givers who would be eligible to receive mitigated punishment under that section.
I agree that the asymmetric treatment of bribe givers and bribe takers makes little sense, but rectifying that asymmetry by restricting the availability of leniency to bribe givers who voluntarily confess is the wrong approach. On the contrary, China should expand Article 390 so that bribe takers who report to the government and offer evidence against the bribe payer would be eligible for leniency. But only the party that reports first (and fully and candidly) should be eligible for leniency—the other party to the transaction would be punished harshly. This system, which would resemble the US Department of Justice’s Antitrust Leniency Program, creates a prisoner’s dilemma problem for both parties to the bribe transaction, thus helping to detect and deter bribery more efficiently.
Bribery cases, like price-fixing conspiracies, are covert and extremely difficult to uncover, as it is in the interest of the bribe giver and the bribe taker to keep the transaction a secret (see here and here). A system in which only the bribe-payer is eligible for leniency means that the bribe-taker has no incentive to go to the authorities. Even the bribe-payer has little incentive to do so unless and until he or she comes to believe that the CCDI has, or is about to obtain, information on the bribery scheme. But if either party to the transaction can escape punishment by reporting first, and also knows that they will face harsh punishment if the other party reports earlier, then wrongdoers would be more likely to turn against each other, with both sides feeling pressure to self-report first. Perhaps most importantly, this system sows distrust between potential bribers and potential bribe recipients, which might discourage many bribe transactions from happening in the first place. As noted above, this is essentially the strategy that the US DOJ’s Antitrust Leniency Program uses to break up cartels—the first, but only the first, cartel member to confess and report on its co-conspirators gets leniency—and this system has proven quite successful.
One attractive feature of extending the possibility of leniency to bribe-takers is that, at least in China, bribe schemes often involve the same firm or individual bribing multiple government officials (see, for example, here and here)—and those government officials may well be rivals and competitors. This rivalry means that these government officials have an additional incentive to blow the whistle on the bribery scheme, as in doing so they may bring down their political adversaries.
Apart from producing a greater number of reports early on, this sort of symmetric leniency system would create better incentives for confessing parties to describe their crimes fully and with honestly, instead of telling half-truths or making false claims. To illustrate, suppose that briber X gave a car to official Y to obtain a government subsidy. The investigator knows about the car, but not the subsidy. Under the current asymmetric leniency program, X might falsely claim that he gave the car to Y because Y solicited it, which would not even be a crime in China. The official, meanwhile, might insist that he received the car as a token of friendship. But if the system offers leniency to whomever comes first to tell the truth, then both parties might have a stronger incentive to report the crime accurately at the first place.
While this approach—expanding Article 390 so that it offers symmetrical leniency opportunities for both bribe-givers and bribe-takers, whichever reports first—would substantially improve China’s anti-bribery enforcement, it’s important to acknowledge several limitations. For one thing, even with this system in place, bribe-takers and bribe-givers might remain reluctant to disclose their unlawful deal, especially given the hostility to whistleblowing in China. (Both bribe-taking officials and bribe-paying private parties have much to lose if they get a reputation for turning on their transaction partners.) And China’s strong “zero tolerance” rhetoric on corruption within the Chinese Communist Party may make it politically difficult to embrace a system that offers the prospect of leniency to corrupt officials. (Bribe-paying private parties are sometimes viewed more sympathetically.) Still, if the goal is suppressing bribery as effectively as possible, pitting the interests of bribe-payers and bribe-takers against each other, through the use of a symmetric leniency program, may offer the most effective way forward.