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A Study on the legal Improvement Methods of The Improper Solicitation and Graft Act

  • Public Land Law Review
  • Abbr : KPLLR
  • 2017, 77(), pp.297-325
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Kim, Ki-Ho 1

1한국법제발전연구소

Accredited

ABSTRACT

The Improper Solicitation and Graft Act defines a ban on improper solicitation and graft while the concept of improper solicitation is based on various precedents set by the court. With regard to determining whether improper solicitation is related to a public servant's duties, the Anti-Corruption and Civil Rights Commission, a government agency in charge of enforcement, interprets it in a broad sense and thus makes it difficult for those subject to the Act to predict what exactly constitutes a violation. Hence, improvement in the concepts of improper solicitation and social ethics is required based on legislation and not the court's precedents or the Anti-Corruption and Civil Rights Commission's authoritative interpretations. In order to achieve the purpose of its legislation, the Act sets forth its applicable scope and target as public institutions and officials that perform public duties, and limits their basic rights such as private economic activities and freedom of speech. Hence, the Act requires the same level of the basic rights' restraints on them as it is for public servants without any reasonable justification, and limits the general right to act freely for journalists and private school employees, whose basic rights are to be protected by the state. The Act infringes upon the principle of banning one’s own opinion and constitutes a violation of equality of rights. For this reason, the private sector should be exempted from the Act's applicable scope to serve its original legislative purpose, which is to root out improper solicitation practices in the public sector. Articles 10.2 and 10.4 of the Improper Solicitation and Graft Act make it mandatory for public officials to report their outside lectures and allow the head of their agency to restrict such activities by considering whether they interfere with the performance of their duties. However, their basic rights should be guaranteed more strongly, as they are fundamentally different from public servants. In addition, given that these articles allow the head of the institution to ban the expression of certain things based on a pre-screening of an outside lecture and as Article 21 of the Act defines the means to enforce this ban, the articles set pre-censorship requirements in place. Thus, not only can this not be considered an appropriate means to accomplish the legislative purpose of the Act, but it also infringes on journalists and private school employees' freedom of the press and academic freedom. Furthermore, the Code of Conduct for Public Officials and the Requirements of Public Officials regulate public servants based on pre-screenings of an outside lecture and the approval of the agency head, which makes these articles in this Act redundant. Hence, it would be reasonable to remove them. The principle of systemgerechtigkeit (legitimacy) in the criminal punishment system is one that should be considered during legislative activities. Articles 5 and 8 of the Improper Solicitation and Graft Act only set forth bans on improper solicitation and graft, but the Act does not have any punitive article on those violating the bans by directly providing improper solicitation and the spouses of those public servants receiving improper graft. Hence, it runs counter to the principle of proportionate responsibility and criminal punishment. Although this Act puts in place a ban on receiving graft along with a ban on improper solicitation, it imposes fines if the graft is related to duties while imposing criminal punishment if it is not, which does not make sense. While the Act exempts from penalties a public servant's spouse who violates a ban on receiving graft in relation to the public servants' duties, it imposes criminal punishment on public servants who violate their obligation to report their spouse. Thus, it also runs counter to the principle of proportionate responsibility and criminal punishment. If a public servant's spouse receives improper graft in relation to the public servant's duties, the spouse would certainly be regarded as intending to take illegal profits, so he or she could be subject to punishment in accordance with the Criminal Act. Therefore, such articles mandating the reporting of a public servant's spouse and imposing penalties for not doing so force the public servant to act against his or her conscience and therefore infringes on the freedom of conscience. Nonetheless, since it does not provide any legitimate reason for not being systematic, which contradicts the same rule and conflicts with other laws, the Act is deemed to be in violation of The principle of proportionality of responsibility and punishment. Hence, regulating the criminal punishment system in this Act based on whether improper solicitation or graft is related to the duties a public servant performs seems appropriate for its legislative purpose.

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