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).
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.
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.
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.
Back to top