To correctly understand the provisions of this article on kickbacks, we should pay attention to the following points:
1. On the concept of kickback. So far, there is no unified and clear explanation of the word kickback in theory, let alone a legal definition. In the real economic life, the word kickback has been misused more and more, and its scope has become wider and wider. Some people not only confuse kickbacks with commissions, discounts and handling fees. , but even including benefits, invitation fees, communication fees, commissions, etc. Into the "big pocket" of kickbacks. There are three main views on the issue of kickbacks. First, in a strict sense, kickback means that in commodity trading, the seller deducts some money from the payment received and returns it to the buyer or his entrusted agent (agent). In other words, rebate can only appear in the buyer's market, which belongs to the cost of promoting products. Secondly, some people think that, in addition to the narrow rebate mentioned above, China is still in short supply, and many commodities or raw materials, especially some in short supply, are in short supply. Because buyers are in urgent need, they often have to add a handling fee to the payable price. Although it is not "deduction" but "addition", it is still included in the scope of rebate. Third, in people's understanding of daily life, the scope of kickbacks is more extensive. Rebate includes commission, information fee, labor fee, incentive fee, consulting fee, handling fee and incentive fee.
2. Fully understand the complexity of kickbacks. The problem of kickback is very complicated, and its complexity is manifested in: (1) inconsistent understanding. At present, people have different understandings of what kickbacks are. Therefore, how to give a clear definition of kickback and how to draw a clear boundary for kickback are the primary problems we will encounter when trying to solve this problem. (2) There are many reasons. There are not only some international practices formed in international economic exchanges for a long time, but also some disadvantages in the development of domestic commodity economy caused by imperfect system and unreasonable price. There are objective environment and subjective reasons. There are reasons for promoting sales and conformity. (3) Various names and forms of expression. Names mainly include information fee, introduction fee, business fee, incentive fee, incentive fee, etc. Rebates are mainly manifested in the following aspects: first, in order to buy goods in short supply in the market from suppliers, such as steel at planned prices, kickbacks are paid to managers and responsible persons who have the right to approve sales business; Second, pay fixed kickbacks to credit officers and bank managers to obtain bank loans; Third, in order to obtain the project contracting right, pay kickbacks to the person in charge of the employer; The fourth is the kickback paid to relevant personnel for promoting unsalable goods, inferior goods or overstocked goods due to fierce competition. (4) There is a contradiction between policy determination and legal adjustment. The provisions of the current documents and regulations on the illegality of kickbacks include civil violations, economic violations, administrative violations and criminal violations. The State Council document198114 proposes to stop unhealthy trends; 1982 Guofa No.68 document stopped issuing extra income for employees engaged in improper economic activities; 1986 the notice of the general office of the State Council is that it is forbidden to seek illegal interests in social and economic activities; 1988 document the State Council 13 is an interim provision to impose administrative sanctions on the corruption and bribery of state administrative organs; 1988 1 The National People's Congress has made supplementary provisions on punishing bribery and corruption.
3. The advantages and disadvantages of kickbacks should be viewed correctly. As a means of commercial competition, kickback is the product of the development of commodity economy to a certain historical stage. As early as the middle of19th century, the railway transportation system in capitalist countries used kickbacks in order to increase the freight volume, which later appeared widely in commercial activities. However, with the development of capitalism, this method is regarded as unfair competition, which is restricted or prohibited. China is in the primary stage of the development of market economy, with unbalanced development level of productive forces and coexistence of various ownership systems and economic components. As a lubricant, kickbacks have played a positive role in promoting the development of rural collective enterprises and private economy. However, kickback is mainly a corrosive agent, which violates the principle of good faith in economic activities, promotes the widespread popularity of counterfeit and shoddy goods, seriously damages the interests of the state, the collective and the vast number of consumers, and corrupts the social atmosphere. The advantages outweigh the disadvantages, and the disadvantages far outweigh the advantages, so kickback is also stipulated as an unfair competition behavior in the Anti-Unfair Competition Law.