Industry and commerce, lawyer authority to answer: equipment, bundled supplies sales, and even a bribe?

Medical Network News March 28

Author: Wu Yandong Shanghai Industrial and Commercial Bureau

Zhang Shihai Shanghai Bang Xinyang Zhongjian Zhonghui Law Firm

Liang Guojun Shanghai Bang Xinyang Zhongjian Zhonghui Law Firm Lawyer

Case handling agency: Haidian Branch of Beijing Municipal Bureau of Industry and Commerce

Punishment time: May 20, 2014

Penalty Result: Confiscation of illegal income of 10805.72 yuan plus a fine of 30,000 yuan

According to the investigation, Beijing Wei Aikang Trading Co., Ltd. sells medical equipment products produced by Beijing Bohui Innovative Optoelectronics Technology Co., Ltd.. The parties sought more trading opportunities and increased market share of their agency products in September 2013. Signed a cooperation agreement with Jiamusi Maternal and Child Health Hospital, agreeing to provide a graphite furnace atomic absorption spectrometer (for detecting lead and cadmium elements in the human body) for free use in Jiamusi Maternity and Child Care Hospital. The cooperation period is 7 years, and the cooperation period expires. The Jiamusi City Maternal and Child Health Hospital is under the agreement. According to the agreement, Jiamusi Maternal and Child Health Hospital must ensure that the reagents and consumables used to detect blood lead are purchased from Party A during the cooperation period. If the use of Party A is stopped during the cooperation period, Equipment, reagents and consumables, or use of other companies, manufacturer-supplied equipment, reagents and consumables, shall be deemed a breach of contract, indemnifying the parties for double the amount of equipment and the use of the total amount of other reagents double the reagent money (in order to Party A’s The price of the reagent shall prevail. This equipment was purchased by the parties from Bohui Company and the purchase amount was 19,000 yuan. The parties were in '201 No. 226, September 30, 3, 'The above equipment was recorded as 'carried out'.

In another investigation, the reagents and consumables sold by the parties to the Jiamusi Maternal and Child Health Hospital were purchased from the Bohui Company. After deducting the tax payment, the parties obtained 10805.72 yuan of illegal income.

The Haidian Branch of the Beijing Municipal Administration for Industry and Commerce believes that the above-mentioned behaviors of the parties constitute commercial bribery as referred to in Article 8(1) of the Anti-Unfair Competition Law. According to Article 23 of the Administrative Punishment Law and unfair competition Article 22 of the Act stipulates that the branch shall impose administrative punishments on the parties.

Case handling agency: Liyang City Market Supervision Bureau of Jiangsu Province

Punishment time: July 7, 2016

Penalty result: Confiscation of illegal proceeds of 132,849.42 yuan and a fine of 30,000 yuan

On January 19, 2015, the Market Supervision Bureau of Puyang City of Jiangsu Province found out in its daily inspection that Nanjing Huizhong Medical Equipment Co., Ltd. sold reagents by providing free medical equipment to Xiangyang Chinese Medicine Hospital. The act was suspected of being improper. Competition. On that day, the bureau was verified after filing.

According to the investigation, in October 2010, in order to obtain sales of reagents to the Fuyang City Hospital, the parties provided an automatic glycosylated hemoglobin detector for free at the Fuyang City Hospital, worth RMB 105,000, and signed a purchase with the Fuyang City Hospital. Reagents and Borrowing Instruments Agreement. The agreement stipulates that during the period of use of the instrument, Fuyang TCM Hospital shall not use the reagents and consumables provided by other manufacturers and companies; if the agreement is violated, the parties may withdraw the above instruments at any time. Since October 2010 At the time of the incident, the parties sold the reagents to the Fuyang City Hospital through the above methods. By January 2015, the parties had sold a total of 234,000 yuan worth of reagents to the Liyang City Chinese Medicine Hospital, benefiting 132,849.42 yuan.

The Liyang City Market Supervision Administration believes that the behavior of the parties violated the first paragraph of Article 8 of the Anti-Unfair Competition Law and the second paragraph of Article 2 of the Interim Provisions on the Prohibition of Commercial Bribery of the State Administration for Industry and Commerce, which constitutes The commercial bribery referred to in Article 8(1) of the Anti-Unfair Competition Law is based on Article 22 of the Anti Unfair Competition Law and Article 23 of the Administrative Punishment Act. Make an administrative penalty.

Case handling agency: Xinghua Market Supervision Bureau of Jiangsu Province

Punishment time: April 24, 2017

Penalty result: fined 20,000 yuan

On November 11, 2016, the Market Supervision Bureau of Xinghua City of Jiangsu Province received a report from the public, which indicated that Zhicheng Medical Devices Co., Ltd. of Yancheng City signed on May 29, 2015 with the Second People’s Hospital of Xinghua City about sales of biochemical reagents. Contract, suspected of commercial bribery. The law enforcement officers of the Bureau conducted an on-site inspection of the parties and checked the relevant contracts. The verification was initiated on the same day.

According to the investigation, on May 29, 2015, the parties signed a contract with the Second People's Hospital of Xinghua City, and agreed to put a US$500,000 automatic U.S. imported biochemical analyzer and a free one to the Second People’s Hospital of Xinghua City. Taiwan's Guilin Unitech Five-class Blood Cell Analyzer with a value of 120,000 yuan. The parties requested that the reagents used by the Second People's Hospital of Xinghua City in the use of the two instruments be purchased from the parties. The contract period is 5 years. The amount of reagent purchased by the Second People's Hospital of the City from the parties according to the contract is not less than RMB 470,000.

The Xinghua Market Supervision Bureau believes that the above-mentioned behaviors of the parties constitute the commercial bribery referred to in Article 8(1) of the Anti-Unfair Competition Law. According to Article 20 of the Anti-Unfair Competition Law, the Bureau imposes administrative punishment on the parties.

Case handling agency: Shanghai Pudong New Area Market Supervision Authority

Punishment time: June 24, 2015

Penalty result: Confiscation of the illegal income of 295.683456 million yuan and a fine of 100,000 yuan

In September 2004, a Pharmaceutical Co., Ltd. signed an exclusive distribution agreement with a pharmaceutical company, and then signed an agreement with the general distributor to sell all of its prescription drug '***' to a pharmaceutical company, and then a pharmaceutical company as an agent. Sell ​​to a dealer.

From 2011 to 2013, the parties signed exhibition agreements with four pharmacies respectively, requiring the pharmacy to display the party’s products as the key recommended products in the retail pharmacies, and to ensure that the parties’ products have centralized, fixed location, quantity and display in the prescription drug counters. The party pays the exhibition fee for this purpose.

From July 2011 to June 2013, the parties paid a total of 92.618 million display fees to the above four pharmacies. After that, the parties passed drug Sales obtained illegal income of 295.683456 million yuan.

The Shanghai Pudong New Area Market Supervision Administration believes that the behavior of the parties violated the provisions of Article 59, paragraph 1, of the Drug Administration Act and constituted an act of giving other interests to the drug trading company. According to the “Drug Administration Law” No. 9 5. Article 10 stipulates that the agency shall impose administrative punishments on the parties.

Case handling agency: Shanghai Yangpu District Market Supervision Bureau

Punishment time: May 11, 2017

Penalty result: Confiscation of the party’s illegal income of 681,550.77 yuan, a fine of 80,000 yuan for the commercial bribery of the party, and a fine of 50,000 yuan for the collusion of the party in the bid.

The investigation, Shanghai Kelimet Bio medicine Science and Technology Co., Ltd. lent unpaid to the Tenth People's Hospital of Shanghai and the mass spectrometer of Renji Hospital of Shanghai Jiaotong University for unfair competition. The parties sold 5 kits for supporting the mass spectrometer to the two hospitals. In person, the total sales amounted to RMB 810,720, and the profit was RMB 681,550.77. In addition, the parties purchased the 'High-Performance Liquid Chromatography Tandem Mass Spectrometry Detection Reagent' project at Yan Chai Hospital in addition to the unfair competition behaviors of the Yanji Hospital mass spectrometer kit. In the bidding process, there are collusions of illegal bids.

Shanghai Yangpu District Market Supervision Bureau held that the above behavior of the parties violated the provisions of Article 8(1) of the Anti Unfair Competition Law and constituted commercial bribery. According to Article 22 of the Anti Unfair Competition Law In accordance with the regulations, the agency has imposed administrative penalties on the parties. In addition, the parties involved in the tendering process of the “High-performance liquid-phase tandem mass spectrometry detection reagents” project in Yanji Hospital have collaborated on bidding activities, and their actions have violated the “Unfair Competition Law”. Article 15. According to Article 27 of the Anti-Unfair Competition Law, the Bureau imposes administrative punishments on the parties.

The new Anti-Unfair Competition Law was implemented on January 1, 2018. The design of commercial bribery clauses has returned to the nature of commercial bribery. It has important practical significance for administrative law enforcement and corporate compliance. In reality, corporate equipment placement behavior More complex, whether it constitutes a commercial bribery should be combined with individual case analysis and judgment. This article mainly revolves around the definition of commercial bribery in the new Anti-Unfair Competition Law and the implementation of the new Anti-Unfair Competition Law in the field of post-pharmaceutical purchase and sale. Behavioral commercial bribery risk analysis.

Equipment delivery is a common business model. Operators use a variety of methods to put equipment into the market to achieve business goals such as winning trading opportunities and occupying the market. For example, in the beverage industry, cold drink equipment is launched, and cold drink equipment is launched and the monopoly agreement is tied. Set together, and the cold drink equipment itself is a carrier of brand promotion, this device delivery model has become a commercial practice. Another example, the coffee machine and the purchase of coffee beans, channel binding and so on.

This article only discusses the equipment launching of the public hospital attached to the binding agreement in the field of pharmaceutical purchase and sale. It means that the hospital does not have to pay the purchase cost or rent when introducing the equipment, and the equipment supplier will provide the equipment free of charge in the hospital through the use of the equipment. equipment The profits generated are completely owned by the hospital. The suppliers of the equipment only purchase the equipment's consumables and reagents through the hospital to recover the costs and obtain profits. The binding agreement means that the supplier and the hospital agree to purchase consumables and the minimum total amount of reagents or It is forbidden for hospitals to purchase competitive supplies, reagents, or both from other suppliers. The “equipment delivery” in the following text refers to the equipment that is attached to the binding agreement of public hospitals unless otherwise specified.

Generally speaking, there are two situations in which equipment is delivered: Firstly, ownership of the equipment is transferred to the customer free of charge. The supplier and the hospital agree on the equipment delivery period. Within this period, the hospital needs to purchase the equipment supporting reagents and consumables from the supplier. If purchasing There is no need to pay the price for compliance, but for the non-compliance, part or all of the equipment's consideration shall be paid in accordance with the agreement. Secondly, the right to use the equipment shall be transferred to the customer free of charge. If the number of reagents or consumables purchased from the customer reaches the standard, there is no need to pay the rent. Non-compliance will be paid as agreed.

Regardless of the format, suppliers can ensure the recovery of input costs and achieve a given economic benefit. For hospitals, when equipment purchase funds are insufficient, it is also necessary to ensure that there are considerable consumables and reagent purchases. Safeguard hospitals to introduce equipment in an effective way.

The provisions of Article 7(1) of the new Anti-Unfair Competition Law on commercial bribery revert to the nature of bribery, emphasizing that bribery is the exchange of interests based on positions, powers, or influence, which is of great importance in solving the problem of past commercial bribery determination. significance.

Compared with the "Anti-Unfair Competition Law" of 1993, the new "Unfair Competition Law" adopts a completely enumerated method of exhausting the object of commercial bribery, that is, 'the staff of the transaction counterpart' 'received by the transaction counterparty. The units or individuals entrusted with handling related affairs''units or individuals that use their power or influence to influence transactions'' embody the essential characteristics of commercial bribery in using their positions, powers or influence to seek improper interests, and selling other people's interests.

The essence of commercial bribery is the exchange of duties and interests. After the bribery party obtains the interests of the bribe-paying party, it is not his own interest to sell, but the public interest or employer's interest (including the client's interest) that can influence it. That is, A party that can truly become a commercial bribe-taking party is not a direct counterparty to the transaction, but a counterparty who can influence the transactions of the transaction, or have proxy People can use their authority to influence the third party that influences the transaction. The party receiving the bribe must have a dominant position, often has a significant influence on the transaction, and can use its own authority or convenient conditions for work to help the bribery party in the competition. Get trading opportunities or competitive advantage.

Various forms of interest temptation are common forms of commercial bribery, but the scope of interest temptation is not limited to commercial bribery, but also contains legitimate interests and temptations, such as discounts, prized sales, etc. According to the "improper approval of sales activities in awards The provisions of Article 2 of the Several Regulations on Competitive Behaviors include: Award-winning sales include award-winning sales of all buyers, and prize-winning sales of rewards to some buyers. Unearned sales are undoubtedly a temptation to benefit. .

To understand commercial bribery in terms of interest temptation rather than exchange of job interests is a misinterpretation of bribery itself, which leads to confusing normal commercial promotion activities with illegal commercial bribery.

The controversy over whether or not equipment placement in the field of pharmaceutical purchase and marketing constitutes a commercial bribery has been long-standing, and the behavior of bundling transactions has been considered as a commercial bribery by mainstream views because of its obvious social harm.

On August 21, 2017, the Competition and Law Enforcement Bureau of the State Administration for Industry and Commerce issued the “Notice on Further Strengthening Investigation and Prosecution of Cases of Unfair Competition in the Pharmaceutical Industry”. In the first article, it explicitly stated: 'Strict investigation of false leasing leases, donations, equipment placement, etc. The suspected unfair competition in commercial bribery of bundled consumables and ancillary equipment sales is '. This shows that if the equipment is put into 'bundle consumables and sales of ancillary equipment', the qualitative and propensity of this behavior is seen in the cases investigated by the industrial and commercial and market supervision departments. This constitutes a commercial bribery. At present, this document has not yet been repealed. According to the author's search, there are many cases of commercial bribery similar to the 'bundled transaction' type of equipment placement.

Under the new Anti-Unfair Competition Law, whether or not equipment placement constitutes a commercial bribery is still controversial. It is argued that hospitals are the counterparty to transactions, not the main subject of bribery under the new “Unfair Competition Law,” and there are equipment It is lawful for hospitals that are not well-funded to update equipment in a timely manner, improve the level of diagnosis and treatment, and benefit the patient.

The author believes that the device has a certain positive significance, but if handled improperly, there is still a higher risk of commercial bribery under the new "Unfair Competition Law", which is mainly reflected in five aspects.

▋ 1. Cannot simply understand public hospitals as equivalent to 'relative party' with independent property and will

Public hospitals belong to institutional legal persons, have public service functions, and are not independent in property and will. They are extensions of the public service functions of state organs. Article 9 of the Guidelines for the Central Committee of the Communist Party of China and the State Council on Classifying and Promoting the Reform of Public Institutions stipulates that Tasks, service targets, resource allocation methods, etc., divide the institutions engaged in public service into two categories: Basic public services such as compulsory education, basic research, public culture, public health, and basic medical services at the basic level. If it is not appropriate for the market to allocate resources, it shall be classified as public welfare; if it is to undertake higher education, non-profit medical and other public welfare services, which may be partially allocated by the market, it shall be classified as public welfare 2. Article 54 of the Property Law stipulates that the State shall hold The institutions shall enjoy possession of, use of, and the proceeds of the disposal of real estate and chattels directly at their disposal, in accordance with the law and the relevant regulations of the State Council.

As a result, the property of public hospitals is not independent, and is subject to many restrictions such as the “Law on Real Right”, the “Guarantee Law” and its judicial interpretation, the hospital financial system, the hospital accounting system, and the “Measures for the Management of the Configuration and Use of Large Medical Devices”; Restricted by the "Government Procurement Law" and related regulations; Personnel is not independent, especially the appointment or dismissal of hospital management is determined by the Party committee or the competent authority at a higher level.

▋ 2. Public hospitals can be viewed as 'units that use authority or influence to influence transactions'

Public hospitals have the possibility of becoming the subject of special bribery in the new Anti-Unfair Competition Act. Although public hospitals are constantly trying to reform the mixed ownership system and improve the corporate governance structure of hospitals, it is undeniable that public hospitals as public institutions have Public service functions, property is not independent, procurement behavior is under the jurisdiction of the government procurement regulations, the interests of the manager and the owner (equity) are inconsistent. The choice of the hospital directly affects the government procurement. The hospital does not meet the cost-maximizing choice, Does not directly affect the interests of the subject making the choice, but it will damage the public interest and the interests of the patient.

There are also views that taking into account public hospitals, doctors' right to prescribing, and the impact on health insurance payments, hospitals can be considered as 'units or individuals entrusted with the transaction by the transaction counterpart'. Due to space limitations, discussions are not held here.

▋ 3. Defining anti-competitiveness by binding sales volume and/or restricting equipment delivery

Bundling sales volume and/or limiting the availability of equipment for the procurement channel, in order to gain the advantages of trading, competitive advantage, and crowding out competitors, has the effect of squeezing the survival space of small and medium-sized enterprises. This is a bundle of consumables and ancillary equipment. Cases are often characterized as commercial bribery.

As in Case 1, Beijing Wei Aikang Trading Co., Ltd. provided a fully automated blood lead analyzer to Jiamusi Maternal and Child Health Hospital, and agreed that Party B (Jiamusi Maternal and Child Health Hospital) must ensure that it will be from Party A during the cooperation period. (Party) Purchasing reagents and consumables used for testing lead blood elements, such as Party B's use of equipment, reagents and consumables provided by Party A during the cooperation period, or the use of equipment, reagents and consumables provided by other companies, manufacturers, etc. As a breach of contract, Party B shall indemnify Party A for double the amount of equipment and the total amount of other reagents used for the double reagent (subject to Party A's reagent price). The Beijing Municipal Administration for Industry and Commerce finds that the parties’ behavior constitutes a commercial bribe. And impose administrative penalties.

Another example is the case of the administrative penalties in Case 2 which stated that Nanjing Huizhong Medical Equipment Co., Ltd. provided a fully automatic glycosylated hemoglobin detection system to the Shenyang Traditional Chinese Medicine Hospital in order to obtain the sales of reagents to the Shenyang Traditional Chinese Medicine Hospital. 105,000 yuan, and signed an agreement on purchasing reagents and borrowing instruments with the Chinese Hospital of Shenyang City, stating that ' during the use of the instrument, the Fuyang City Hospital shall not use any reagents and consumables provided by other manufacturers and companies; It is stipulated that Nanjing Huizhong Medical Equipment Co., Ltd. may withdraw the above mentioned instruments at any time.. The Market Supervision Bureau of Liyang City of Jiangsu Province has accordingly determined that the parties’ behavior constitutes a commercial bribery.

Another example is the case of the administrative penalties in Case 3 which stated that medical instruments Co., Ltd. signed a contract with the Second People’s Hospital of Xinghua City. The contract includes a free US$500,000 imported U.S. automatic biochemical analyzer and a domestic product worth RMB 120,000 to the Second People’s Hospital of Xinghua City. Guilin UNITED Five Sorting Blood Cell Apparatus, The Second People’s Hospital of Xinghua City purchased the reagents used by the above two instruments from the parties. The contract period is five years. The Second People’s Hospital of Xinghua City is purchased from the parties according to the contract each year. The accumulated amount of reagents collected was not less than 470,000 yuan. The Market Supervision Bureau of Xinghua City, Jiangsu Province, thus determined that the parties’ behavior constitutes a commercial bribery.

▋ 4. Injury to patients

Placing equipment to public hospitals may cause them to perform unnecessary checks or medications on patients in order to meet the purchase volume of the reagents and increase the burden on the patients. In the doctor-patient relationship, there is serious information asymmetry between the hospital and the patient, the patient is admitted to the hospital, and everything As far as hospitals and doctors are concerned, for hospitals, after signing an equipment placement agreement with a supplier, they may use factors such as doctor and patient information asymmetry in order to satisfy the purchase amount and/or channel restrictions for free equipment. In the diagnosis and treatment, the patient is used for many purposes, and the consumables and reagents associated with the placement of the device are abused without using the appropriate consumables or reagents that are most beneficial to the patient.

▋ 5. Endanger the public interest

From the provisions of articles 387 and 391 of the Criminal Law concerning the crime of bribery to units and the crime of bribery by units, the government agencies, state-owned companies, enterprises, institutions, and people's organizations offer bribes or special subjects. Bribery, if the circumstances are serious, constitutes a crime, and the aforementioned behavior of the private entity is not considered a crime. This shows that the above-mentioned special subject’s public functions and influence, the interests of the manager and the public interest it bears are inconsistent, and the special subject Payment of benefits may lead to the use of their powers or influence to sell public interests. Therefore, bribing special subjects is socially harmful and criminally illegal. From the perspective of the execution of execution, when these actions do not reach the severity of the crime, they are included in the scope of the administrative penalty. More reasonable.

In addition to the risk of commercial bribery, the device launching behavior also faces the following two risks:

The first is the risk of “other benefits” being paid to medical institutions under the “Drug Administration Law.” Article 58 of the Drug Administration Act of 2015 stipulates that pharmaceutical production enterprises, operating companies, and medical institutions are prohibited from taking out drugs. Implicitly, accepting rebates or other benefits. The benefits here are whether the acceptance of 'other interests' is restricted by 'off-the-shelf secrecy' and whether the name of the guise is 'off-the-shelf', which is not clear in context.

In Case 4, the Shanghai Pudong New Area Market Supervision Authority found that a certain pharmaceutical company paid the display fee to the pharmacy when the pharmacy did not use the special display method according to the agreed contents of the agreement, in violation of the 2013 “ The first paragraph of Article 59 of the Drug Administration Law constitutes an act of giving other benefits to a drug trading company. According to the administrative penalty decision in this case, due to the relevant agreement and display fee invoice, the contract is express and the financial record is incorrect. Qualitative influence. If there is no contractual disclosure, the financial record is considered to be a higher risk of commercial bribery.

Second, it may be considered as an illegal donation. If equipment is understood to be a donation, it does not meet the requirements of the procedures (including financial processing) and non-profit requirements of the “Hygiene and Family Planning Units Accepting Public Welfare Donation Management Measures (Trial)”. It is also in direct violation of the National Health and Family Planning Commission, and the Circular of the State Administration of Traditional Chinese Medicine on Printing and Strengthening the Nine Inaccuracies of Strengthening the Construction of Medical Hygiene is prohibited from accepting donations with conditions affecting fair competition. Acceptance of donation funding linked to the purchase of goods (services).

Due to the anti-competitive nature of the behavior of bundling equipment, the harm to the interests of the patients, the independence of the hospital property, and the inconsistent interests of the manager and the owner, it is highly probable that law enforcement agencies will intervene in the placement of such equipment. In addition, in addition to directly affixing sales or restricting the procurement of consumables, there are common “bundling transactions” type equipment placements. Through technical means, the equipment they place can only be matched with the consumables they sell, that is, 'special-purpose' Bundling, can refer to the way in Case 5. In either case, as long as it constitutes a de facto bundling, there is a higher legal risk.