Strengthening Korea's enforcement of the OECD Bribery Convention

The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Bribery Convention) was signed on December 17, 1997 with the aim of combating bribery in international business transactions. As a member country of the OECD, the Republic of Korea enacted the Foreign Bribery Prevention Act (FBPA) to implement the OECD Bribery Convention on December 28, 1998. From the time that the FBPA has taken effect, there have been 17 cases of the enforcement of the FBPA. The OECD Working Group on Bribery in International Business Transactions (OECD Working Group on Bribery) have evaluated Korea's enforcement of the OECD Bribery Convention on three occasions: Phase 1 (2000), Phase 2 (2004), and Phase 3 (2011). On all three occasions, the OECD Working Group on Bribery stated that sanctions against the offense of the bribery of a foreign public official under the FBPA had not been “effective, proportionate or dissuasive.” Our examination of the FBPA shows that the inadequacy of the enforcement of the FPBA is due to the inadequacy of the framework and the texts of the FBPA. In view of the OECD evaluations, this paper proposes two approaches to remedy the inadequacy of the sanctions under the FBPA. In order to provide “effective, proportionate, and dissuasive” sanctions, the FBPA should add a separate confiscation clause that targets the proceeds of bribery. Alternatively, the FBPA should amend Article 3(1) and Article 4 in order to incorporate a minimum range of fines equivalent to the amount of the proceeds of bribery. These amendments will be able to strengthen the effectiveness of the FBPA and will bring Korea’s implementation of the OECD Bribery Convention into conformity with the expected level of the enforcement of the OECD Bribery Convention.