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1.
International anti-corruption conventions
To which international anti-corruption conventions is your country a signatory?Korea has signed and ratified the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention) and the UN Convention against Corruption.
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2.
Foreign and domestic bribery laws
Identify and describe your national laws and regulations prohibiting bribery of foreign public officials (foreign bribery laws) and domestic public officials (domestic bribery laws).The rules governing bribery of domestic government officials are stipulated in the following laws and regulations:
- the Korean Criminal Code;
- the Act Concerning Aggravated Punishment of Specific Crimes (Specific Crimes Act);
- the Act on the Creation and Operation of the Anti-Corruption and Civil Rights Commission and the Prevention of Corruption (Anti-Corruption Act);
- the Act on the Prohibition of Improper Solicitation and Provision/Receipt of Money and Valuables (Anti-Graft Act);
- the Public Officials’ Code of Conduct for Maintenance of Integrity (Public Officials’ Code of Conduct); and
- other administrative laws and regulations.
As for bribery of foreign public officials, Korea has enacted the Foreign Bribery Prevention in International Business Transactions Act (FBPA) pursuant to the OECD Convention, which has similarities to the US Foreign Corrupt Practices Act.
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3.
Legal framework
Describe the elements of the law prohibiting bribery of a foreign public official.In Korea, the main law governing bribery of foreign public officials is the FBPA, which entered into force in 1999. Under the FBPA, any Korean national who intentionally engages in the bribery of a foreign public official to obtain improper advantages will be subject to criminal punishment. Moreover, any foreign nationals engaged in the bribery of a foreign public official within Korea are also subject to punishment under the FBPA under territoriality principles.
Under article 3.1 of the FBPA, a violation of the FBPA will be found if the following elements are satisfied: any person intentionally promising, giving or offering a bribe (money, goods and other pecuniary advantages as well as intangible benefits that satisfy the demands or the wishes of a person) to a foreign public official in connection with the performance of his or her official duties to obtain an improper advantage in an international business transaction.
Under the FBPA, only bribe givers are prosecuted; bribe recipients (ie, foreign officials as defined by the FBPA) are not subject to sanctions.
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4.
Definition of a foreign public official
How does your law define a foreign public official?Article 2 of the FBPA defines a foreign public official in a way that is similar to the OECD Convention, encompassing not only government officials but also individuals performing a public function (eg, employees in public agencies, international organisations and government-controlled companies).
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5.
Travel and entertainment restrictions
To what extent do your anti-bribery laws restrict providing foreign officials with gifts, travel expenses, meals or entertainment?The FBPA prohibits providing a bribe to a foreign official when the elements of article 3.1 are satisfied. A ‘bribe’ under the FBPA includes ‘any undue advantage’, which refers to money and goods and includes almost everything that the official demands or desires. As there is no specific exception regarding gifts or entertainment under the FBPA, whether a gift is criminally punishable will depend on the amount of the gift or entertainment and the specific facts of each case.
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6.
Facilitating payments
Do the laws and regulations permit facilitating or ‘grease’ payments?The FBPA was amended on 15 October 2014 to eliminate the facilitation payment exception. Thus, facilitation payments are no longer permitted under the FBPA.
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7.
Payments through intermediaries or third parties
In what circumstances do the laws prohibit payments through intermediaries or third parties to foreign public officials?The FBPA itself does not contain specific regulations concerning payments through intermediaries. However, in precedents involving domestic public officials, courts have held that payments provided to third parties may be a criminal offence if the relationship between the third party and the public official is such that the public official may be deemed to have directly received the payment (eg, if the third party is an agent or creditor of the public official). Additionally, the Korean Supreme Court has ruled that the defendant committed bribery when he or she provided payments to a company where the public official was the de facto manager. In light of these precedents, payment through intermediaries or third parties to foreign public officials, albeit indirectly, is prohibited under the same circumstances.
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8.
Individual and corporate liability
Can both individuals and companies be held liable for bribery of a foreign official?Yes. Individuals as well as legal entities can be held liable under the FBPA. A legal entity may be held liable for bribery of a foreign official when a representative, agent, employee or other individual working for such legal entity has committed the foreign bribery offence in connection to its business.
Article 4 of the FBPA, however, does not enforce strict liability if the legal entity has ‘afforded due attention or exercised proper supervision to prevent the offence’. The corporation or other legal entity may be exempt from punishment if it proves that it has taken measures to prevent such FBPA violations by its representatives, agents or employees.
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9.
Successor liability
Can a successor entity be held liable for bribery of foreign officials by the target entity that occurred prior to the merger or acquisition?No. While there are no specific laws on this point, in 2007 the Korean Supreme Court ruled that a successor entity cannot be held liable for the target entity’s acts that occurred prior to the merger or acquisition.
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10.
Civil and criminal enforcement
Is there civil and criminal enforcement of your country’s foreign bribery laws?The FBPA only contains criminal penalties, but a convicted party may be held liable additionally for civil damages under a lawsuit initiated by a party whose rights were infringed (ie, competitors, customers, business partners, etc) pursuant to tort law.
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11.
Agency enforcement
What government agencies enforce the foreign bribery laws and regulations?The FBPA is enforced by the police and prosecutors’ offices. A Korean court has final authority in determining the amount of fine or the length of imprisonment.
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12.
Leniency
Is there a mechanism for companies to disclose violations in exchange for lesser penalties?There is no explicit mechanism for companies to disclose violations in exchange for reduced penalties. As noted in question 8, however, the corporation or other legal entity may be fully or partially exempt from punishment if it proves that it has taken measures to prevent such the FBPA violations by its representatives, agents or employees.
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13.
Dispute resolution
Can enforcement matters be resolved through plea agreements, settlement agreements, prosecutorial discretion or similar means without a trial?FBPA enforcement matters are not resolved through plea agreements or settlement agreements. However, as in any other case, the public prosecutor possesses a certain amount of discretionary powers to decide whether to proceed with prosecution depending on the specific circumstances of the case.
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14.
Patterns in enforcement
Describe any recent shifts in the patterns of enforcement of the foreign bribery rules.Since the enactment of the FBPA, there have only been a small number of convictions for foreign bribery in Korea, mostly with respect to US military projects in Korea. Recently, the Korean Prosecutor’s Office indicted individuals under the FBPA for bribing employees of an engineering and construction company in connection with a US military base construction contract (see question 17).
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15.
Prosecution of foreign companies
In what circumstances can foreign companies be prosecuted for foreign bribery?Foreign companies operating in Korea can be held liable for the behaviour of their employees, agents and representatives under the FBPA (see question 3). There are no thresholds as to size or legal form of the entity, so that any legal person acknowledged under the law including associations, foundations, joint-stock corporations, limited liability companies, unlimited or limited partnerships, etc, may potentially come under the reach of the FBPA.
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16.
Sanctions
What are the sanctions for individuals and companies violating the foreign bribery rules?Individuals may be subject to imprisonment for up to five years or a fine of up to 20 million Korean won. If the profit obtained through the offence exceeds a total of 10 million won, the individual can be subject to imprisonment of up to five years or a fine of up to twice the amount of the profit. Whenever an individual becomes subject to imprisonment, a fine will be imposed as well.
Corporate entities may be held liable to pay a fine of up to 1 billion won in addition to the imposition of penalties on the actual offender. If the profits that were obtained through the offence exceed a total of 500 million won, the legal entity can be subject to a fine of up to twice the amount of the total profit. The imposition of penalties on the actual offender is not a prerequisite for imposing a fine on the company.
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17.
Recent decisions and investigations
Identify and summarise recent landmark decisions or investigations involving foreign bribery.In October 2015, the Seoul Central Prosecutors’ Office indicted three closed-circuit television (CCTV) manufacturers and their respective executives and employees for offering bribes to a US military official (a US citizen) stationed in Korea, alleging violation of the FBPA. The CCTV manufacturers were charged with giving the bribes in exchange for inflating the number of CCTVs supplied to the US military. The US military official allegedly accepted a total of 128 million won from the three CCTV manufacturers, but was arrested on charges of commercial bribery under the Korean Criminal Code (and not for alleged violation of the FBPA). The current status of the case is not publicly available.
In February 2018, the Seoul Central Prosecutors’ Office indicted seven individuals for bribing a Contracting Officer of the US military to win the contract for a US military base construction project. The indicted individuals include employees of the Korean construction company, as well as a former military official who allegedly delivered the bribe of 3.7 billion won to the Contracting Officer. The investigation was a joint effort by the Seoul Central Prosecutors’ Office, the FBI, and the United States Army Criminal Investigation Command; these entities have also announced that they plan to continue to cooperate during the trial proceedings by sharing evidence. The current status of the case is not publicly available.
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18.
Laws and regulations
What legal rules require accurate corporate books and records, effective internal company controls, periodic financial statements or external auditing?An amendment to the External Audit of Joint-Stock Company Law, which went into effect on 1 November 2018, has significantly expanded the scope of companies that are subject to external auditing. A particularly noteworthy change is that under the amended External Audit of Joint-Stock Company Law, limited liability companies are now also subject to external auditing, whereas prior to the amendment only joint stock companies were required to be audited by an external auditor on an annual basis. The amendment that imposes external audit obligations on limited liability companies is scheduled to come into effect in the fiscal year that starts one year after the effective date of the amended External Audit of Joint-Stock Company Law. Therefore, most limited liability companies that have their fiscal year starting on 1 January are expected to be subject to the external auditing requirement from 1 January 2020 (ie, the company must publicise its audit report for FY 2019).
According to the amended External Audit of Joint-Stock Company Law, any joint stock companies and limited liability companies that satisfy any of the following thresholds will be subject to external auditing:
- all listed companies;
- any company seeking to become a listed company during this fiscal year or the immediately following fiscal year;
- a joint stock company satisfying any of the following thresholds:
- total net asset value is 50 billion won or more as of the end of the immediately preceding fiscal year;
- total turnover is 50 billion won or more as of the end of the immediately preceding fiscal year; or
- does not fall under more than three of the following thresholds:
- total net asset value is less than 12 billion won as of the end of the immediately preceding fiscal year;
- total liabilities amount is less than 7 billion won as of the end of the immediately preceding fiscal year;
- total turnover is less than 10 billion won as of the end of the immediately preceding fiscal year; or
- employs less than 100 employees as of the end of the immediately preceding fiscal year;
- a limited liability company satisfying any of the following thresholds (however, a company that changes from a joint stock company to a limited liability company after 1 November 2019 will be subject to the aforementioned thresholds applicable to joint stock companies for a period of five years from the date it registers such change in structure):
- total net asset value is 50 billion won or more as of the end of the immediately preceding fiscal year;
- total turnover is 50 billion won or more as of the end of the immediately preceding fiscal year; or
- does not fall under more than three of the following thresholds:
- total net asset value is less than 12 billion won as of the end of the immediately preceding fiscal year;
- total liabilities amount is less than 7 billion won as of the end of the immediately preceding fiscal year;
- total turnover is less than 10 billion won as of the end of the immediately preceding fiscal year;
- employs less than 100 employees as of the end of the immediately preceding fiscal year; or
- less than 50 unitholders as of the end of the immediately preceding fiscal year.
Any company that meets the thresholds described above is required to be audited by an external auditor on an annual basis and required to prepare and keep corporate books with effective internal controls in accordance with the accounting principles set forth under the External Audit of Joint-Stock Company Law. On the other hand, certain companies (listed companies or companies to be listed, financial holding companies, banks, insurance companies, etc) are subject to the Korean International Financial Reporting Standards.
Additionally, the Korean Commercial Code requires a company to prepare an account book and a balance sheet on an annual basis and keep corporate books including important documents related to the business for 10 years.
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19.
Disclosure of violations or irregularities
To what extent must companies disclose violations of anti-bribery laws or associated accounting irregularities?There is no general obligation in the Korean anti-bribery laws to report violations of anti-bribery laws. However, in the case of financial institutions such as banks and securities companies, if the head of the financial institution discovers that a director, officer or an employee has committed a crime under the Aggravated Punishment of Specific Economic Crimes Act (Specific Economic Crimes Act), he or she has the obligation to report such matter to the relevant authorities. The Specific Economic Crimes Act punishes both giving and receiving of bribes with respect to employees of financial institutions.
A company subject to the external audit requirement above is also subject to the requirement that an audit report prepared by an external auditor be submitted to the Financial Supervisory Commission and the Korean Stock Exchange under the Capital Market Consolidation Act. The audit report should disclose information on any events that may have a significant impact on the company. These events would be disclosed in the financial statements (ie, balance sheet and profit and loss statement) as a loss or gain (or a liability or asset, or both) or in the footnote thereof as a ‘contingent’ liability or asset. The loss of a company that may result from being found guilty of foreign official bribery, if significant, is likely to be recognised as a contingent liability provided that the amount of such liability cannot be measured with sufficient reliability. The audit report must be submitted once per year after the annual financial statements have been prepared. This audit requirement does not require the company to disclose any such event as and when it occurs.
An event or omission may be considered to have a ‘significant impact’ or be considered ‘material’ from an auditing point of view if such event could influence the economic decisions of those that make such decisions by relying on the financial statements of the company.
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20.
Prosecution under financial record-keeping legislation
Are such laws used to prosecute domestic or foreign bribery?The above-mentioned laws (other than the Specific Economic Crimes Act) are not used to prosecute domestic or foreign bribery.
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21.
Sanctions for accounting violations
What are the sanctions for violations of the accounting rules associated with the payment of bribes?Pursuant to the External Audit of Joint-Stock Company Law, falsifying a balance sheet or audit report (including omissions of required information) in violation of the legally prescribed accounting principles is subject to imprisonment of up to 10 years or a fine amounting to no less than twice and no more than five times the profits gained or losses avoided through such violations. Additional penalties can apply if such violations affect the profits, losses or equity capital listed on the company’s balance sheet.
Also, the External Audit of Joint-Stock Company Law states that violations of several of the provisions may subject a violator to up to five years’ imprisonment or a fine of up to 50 million won, whereas the Capital Markets Consolidation Act provides for imprisonment of up to five years or a fine of up to 200 million won. According to the Korean Commercial Code, a violation can result in a fine of up to 5 million won.
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22.
Tax-deductibility of domestic or foreign bribes
Do your country’s tax laws prohibit the deductibility of domestic or foreign bribes?In Korea, the Corporate Income Tax Law and the Individual Income Tax Law prohibit the deductibility of domestic and foreign bribes.
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23.
Legal framework
Describe the individual elements of the law prohibiting bribery of a domestic public official.Pursuant to articles 129 and 133 of the Criminal Code, the Specific Crimes Act and court precedent, to establish a charge of bribery of a public official (official bribery), prosecutors need to show that an economic benefit has been given to a public official in connection with his or her official duties and the benefits go beyond the boundaries of what is usually given as a matter of custom or social courtesy.
‘Economic benefit’ is broadly interpreted to encompass anything of value including entertainment, a gift of cash or goods, or even an invitation to a round of golf.
A ‘public official’ includes a ‘deemed public official’ who is a senior staff employee of a government corporation meeting the requirements provided in article 4 of the Specific Crimes Act or an employee of a public corporation or quasi-government entity (see question 25). Corporations are not subject to liability for official bribery under the Criminal Code and Specific Crimes Act.
The Korean courts have developed a ‘social courtesy’ exception, and determine whether an act constitutes bribery by taking into account the ‘totality of the circumstances’ including, but not limited to, the following factors set forth by the Supreme Court:
- the scope and nature of the recipient’s duties;
- the relevance of the recipient’s duties to the giver;
- the purpose of the benefit;
- whether there is a pre-existing personal relationship between the recipient and the giver;
- the circumstances of the benefits conferred, including the frequency, timing and amount or value of the gift or benefit; and
- whether the benefits caused the recipient to carry out his or her official duties in a way that would lead the general public to question the propriety of his or her actions.
Separate from the prosecution of official bribery under the Criminal Code and the framework described above, the Anti-Graft Act was passed by the National Assembly on 3 March 2015 and took effect as of 28 September 2016. In Korea, the law is commonly referred to as the ‘Kim Young-ran Law’ (named after the then-head of the Anti-Corruption and Civil Rights Commission who led the preparation of the original bill).
The new legislation contains several noteworthy features that represent significant departures from the existing anti-bribery regime in Korea, including the following:
Expansive definition of ‘public officials’
While the anti-bribery regime under the Criminal Code defines ‘public officials’ as government officials and employees of state-owned enterprises and other public entities, the Anti-Graft Act defines ‘public officials’ to also include employees of public and private schools, members of the media and ‘those who serve a public function’ (eg, private citizens on government-appointed committees).
Improper benefits
The anti-bribery regime under the Criminal Code imposes criminal liability only when benefits were provided or received ‘in connection with the performance of official duties.’ However, the Anti-Graft Act imposes criminal liability without showing such connection to official duties, if the value of benefits given or received exceeds 1 million won for a one-time benefit, or 3 million won in yearly aggregate.
The Anti-Graft Act also prohibits giving and receiving benefits ‘in connection with the performance of official duties’ and imposes an administrative fine even when such benefits do not exceed the monetary thresholds described above. There are, however, certain exceptions for meals, gifts and other legitimate benefits to public officials.
Improper benefits to spouses
Under the Anti-Graft Act, the spouse of a public official is also prohibited from receiving improper benefits in connection with the official duties of the public official. The public official may face sanctions if he or she was aware that his or her spouse received improper benefits but did not report receiving such benefits to the head of the institution where the official is employed.
Improper requests
The Anti-Graft Act prohibits making ‘improper requests’ (ie, causing public officials to violate laws or abuse their position or authority), irrespective of whether such request involves any payment or provision of benefits. The Anti-Graft Act illustrates 15 types of acts that could constitute an ‘improper request,’ and at the same time enumerates certain types of requests that would not constitute ‘improper request’, which include the following:
- requests made in an open forum;
- requests by elected officials, political parties or civic groups for public interest purposes;
- requests to protect rights that are infringed upon, pursuant to legal procedure; and
- other requests that are within the bounds of social custom.
Someone who directly makes an improper request for his or her own benefit is not subject to sanctions. However, any person who makes an improper request through a third party to a public official is subject to an administrative fine under the Anti-Graft Act. For example, if a representative director or an employee of a company makes an improper request for the company, he or she will be deemed to have made an improper request for a third party (the company) and be subject to sanctions.
Corporate liability
The anti-bribery regime under the existing Criminal Code does not impose liability on a corporation when its employee gives unlawful bribes. Under the Anti-Graft Act, however, a corporation may also be subject to administrative or criminal liability if its employees give benefits or make improper requests that violate the Anti-Graft Act. To be exempt from this corporate liability, the company must demonstrate that it exerted significant care and supervision to prevent such violations from being committed by its employees.
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24.
Prohibitions
Does the law prohibit both the paying and receiving of a bribe?Yes, under both the Criminal Code and the Anti-Graft Act.
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25.
Public officials
How does your law define a public official and does that definition include employees of state-owned or state-controlled companies?The State Public Officials Act and the Local Public Officials Act define public officials as those who are employed by both state and local government. However, when it comes to bribery, many statutes include provisions under which certain employees of state-owned or state-controlled companies are deemed to be public officials, thereby subjecting them to bribery provisions under the Criminal Code. For example, a person is deemed to be a public official if he or she is a senior staff employee of a government corporation meeting the requirements provided in article 4 of the Specific Crimes Act.
An exhaustive list under the Presidential Enforcement Decree to the Specific Crimes Act specifically identifies the Bank of Korea and the Financial Supervisory Service, in addition to 44 other entities, as organisations that qualify as government-controlled entities. Additionally, pursuant to the Public Organisation Management Act, the state government issues a list of public corporations and quasi-government entities, the employees of which are deemed to be government officers under the Criminal Code with respect to the charge of bribery.
The Anti-Graft Act defines the term ‘public official’ more broadly to also include school employees, employees of media outlets and those who perform public functions.
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26.
Public official participation in commercial activities
Can a public official participate in commercial activities while serving as a public official?According to both the State Public Officials Act and the Local Public Officials Act, public officials of the state and local governments shall not engage in profit-making activities other than public affairs and shall not hold any other jobs without approval by the head of the institution to which he or she belongs.
Also, the Public Officials’ Code of Conduct states that public officials must not engage in any of the following actions (unless otherwise permitted under the State Public Officials Act or other relevant laws and regulations):
- receiving compensation for providing labour, advice or consulting in a private capacity to a party connected to the public official’s duties;
- for disputes or other matters (eg, transactions) wherein the institution to which the public official belongs is an interested party, such public official representing the counterparty or otherwise providing advice, consulting or relevant information to the counterparty;
- representing a foreign government, entity, corporation or organisation unless otherwise permitted by the head of the institution to which the public official belongs;
- holding another position related to the public official’s line of duty, unless otherwise permitted by the head of the institution to which the public official belongs; and
- other activities that can be viewed as undermining the fairness and integrity of the public official’s performance of his or her duties.
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27.
Travel and entertainment
Describe any restrictions on providing domestic officials with travel expenses, meals or entertainment. Do the restrictions apply to both the providing and receiving of such benefits?According to the Criminal Code and the Specific Crimes Act, any type of economic benefit that is provided to or received by a domestic official in connection with his or her duties is prohibited (unless the benefits are within the boundaries of what is usually given as a matter of social courtesy). In such case, both the giver and the recipient are punished.
The Anti-Graft Act, however, prohibits any type of benefit to public officials (regardless of whether such benefit is connected to the public official’s official duties), and imposes criminal or administrative sanctions for provision or receipt of benefits that would not be categorised as permissible exceptions specifically provided under the Anti-Graft Act. For example, providing meals up to 30,000 won, wedding or funeral cash gifts up to 50,000 won (wedding or funeral flowers up to 100,000 won) or gifts up to 50,000 won (up to 100,000 won for gifts consisting of agricultural or fishery products) will not be subject to sanctions under the Anti-Graft Act, as long as such meals or cash gifts are provided with the purpose of facilitating the official relationship between the parties. The general interpretation is that these meal and gift exceptions would not apply when there is a directly pending matter between the parties (eg, when the recipient public official is inspecting the giver’s company), as rather than facilitating the official relationship between the parties, it would act as an impediment by influencing the public official’s position.
As another example, the Anti-Graft Act also allows transportation, accommodation and meals to public officials in the context of certain types of official events, if they are:
- provided in connection with an official event that is relevant to the public official’s official duties;
- provided uniformly to all participants; and
- within socially acceptable boundaries.
Meanwhile, the Public Officials’ Code of Conduct was enacted and took effect on 19 May 2003 in the form of a Presidential Decree to provide general guidelines with respect to, among other things, giving gifts to and entertaining public officials. Overall, the Code of Conduct set forth parameters similar to those adopted by the Anti-Graft Act (discussed above).
A violation of the Code of Conduct does not necessarily mean that it is a violation of bribery laws. Therefore, in the case of a violation of the Code of Conduct, unless the gifts or entertainment are determined to constitute bribery in violation of the Criminal Code or the Specific Crimes Act, only the public official at the receiving end is subject to disciplinary measures under the Code of Conduct.
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28.
Gifts and gratuities
Are certain types of gifts and gratuities permissible under your domestic bribery laws and, if so, what types?It cannot be said that certain types of gifts and gratuities are permissible under the Korean Criminal Code because any gift, no matter how small, could constitute a bribe depending upon the context in which it is given. However, the Anti-Graft Act does provide certain exceptions for gifts and gratuities under specific circumstances. For more details, refer to question 27.
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29.
Private commercial bribery
Does your country also prohibit private commercial bribery?Article 357 of the Criminal Code prohibits giving economic benefits to a person who is entrusted with conducting the business of another person if such benefits are related to an improper request made in connection with the duties of the person in question. This essentially concerns the bribery of private sector employees.
The difference between the elements of commercial bribery and those of official bribery is that, in principle, commercial bribery requires that an improper request be made (eg, a request to award a bid in exchange for cash), whereas an improper request is not a necessary element of official bribery. For official bribery, as long as the economic benefits are connected to the public official’s duties, providing benefits to an official could be considered bribery even if no improper request is made. In practice, however, prosecutors have tended to gloss over the requirement that an improper request be made in commercial bribery cases, and the courts have not been vigilant in requiring that the element be satisfied.
Articles 5 and 6 of the Specific Economic Crimes Act prohibit offering economic benefits to an officer or an employee of a financial institution in connection with the performance of his or her duties. Similar to the official bribery laws, the Specific Economic Crimes Act explicitly lists the companies, institutions and entities that are considered ‘financial institutions’ for the purposes of the legislation. The list contains both government-controlled financial institutions and private institutions such as commercial banks, securities companies, asset management companies and insurance companies.
Aside from the requirement that the recipient be an officer or employee at a financial institution, the analysis of whether a payment constitutes a bribe is substantially similar to that under the official and commercial bribery provisions.
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30.
Penalties and enforcement
What are the sanctions for individuals and companies violating the domestic bribery rules?A giver of a bribe to a government official in violation of the Criminal Code can face up to five years of imprisonment or a fine of up to 20 million won. The penalty that would apply to the giver of commercial bribe would be either a fine of up to 5 million won or imprisonment of up to two years. Companies cannot be held liable for either type of bribery under the Criminal Code.
Under the Criminal Code, a public official who receives, solicits or agrees to a bribe can face imprisonment of up to five years or be disqualified for up to 10 years. In the case of violations under the Specific Crimes Act, which is applicable when the bribery amount is higher than 30 million won, the penalties may be higher since the maximum penalties are set higher than those under the Criminal Code in correlation with the bribery amount.
Under the Anti-Graft Act, any benefit to public officials above 1 million won, or above 3 million won in yearly aggregate, is subject to either a fine of up to 30 million won or imprisonment of up to three years. The penalty would apply to the both the giver and recipient of the benefit. For benefits under that threshold that are related to the official duties of the recipient public official, both giver and recipient may be subject to an administrative fine of at least twice, but not exceeding five times, the amount of the benefit. A company may be held liable for the acts of its employees under the Anti-Graft Act.
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31.
Facilitating payments
Have the domestic bribery laws been enforced with respect to facilitating or ‘grease’ payments?Domestic bribery laws do not provide for any ‘facilitation payment’ exception. The laws regarding bribery of public officials have been enforced with respect to relatively small amounts of money because a violation can be found simply if the payment is made ‘in connection with the duties’ of the public official.
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32.
Recent decisions and investigations
Identify and summarise recent landmark decisions and investigations involving domestic bribery laws, including any investigations or decisions involving foreign companies.In September 2017, the court rendered its first criminal judgment for violation of the Anti-Graft Act, imposing criminal penalties on a government official who received improper economic benefits. In this case, a high-ranking official in the Korea Expressway Corporation accepted 2 million won in cash from a representative of a company engaged in a road paving business. The court sentenced the official to a criminal fine of 5 million won for violating the Anti-Graft Act prohibition against receiving benefits exceeding 1 million won per instance.
Meanwhile, in August 2018, a Korean district court rendered a decision that provided insight into the issue of benefits received by an individual or entity (as only benefits received by individual public officials are subject to the Anti-Graft Act). In that case, a media company had received, through one of its employees, 35 million won from companies to write and publish promotional articles. The court noted that even a gift received in the name of a media company (ie, entity-level) could be a violation of the Anti-Graft Act if it were intended for a specific individual using his or her position within the media company, and held that there would be no violation of the Anti-Graft Act if:
- the gift was in exchange for the media company to write and publish favourable articles, or for advertising or sponsorship purposes;
- the gift was not based on a personal relationship between the company and the employee at the media company through whom the gift was given; and
- the gift received by the media company was not personally used by a specific individual at the media company (Jeonju District Court, rendered on 9 August 2018).
Finally, various corruption-related trials that emerged in the aftermath of former President Park’s impeachment are also ongoing. In addition to former President Park’s personal aides and various government officials, several heads of Korean conglomerates were also indicted on corruption charges. As of November 2018, former President Park has been found guilty of several charges (including the acceptance of bribes) and was sentenced to 25 years upon appeal, while Jae-yong Lee, Vice Chairman of Samsung, was sentenced to probation upon appeal. Both of these cases are currently pending at the Korean Supreme Court.
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Updates and trends
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