미국 해외부패방지법의 동향과 그 시사점 -반부패행위를 중심으로-

The Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§78dd-1, et seq. (“FCPA”), was enacted for the purpose of making it unlawful for certain classes of persons and entities to make payments to foreign government officials to assist in obtaining or retaining business. The past several years have seen a dramatic increase in the enforcement of the FCPA. The FCPA serves to combat bribery of foreign officials. The Act is incorporated into provisions of the Securities Exchange Act of 1934. The FCPA has two main provisions: the anti-bribery provisions; and the books and records and internal control provisions. The anti-bribery provisions are organized according to the category of entity or person covered by the FCPA. The crux of the FCPA provides for the prosecution of those who bribe foreign officials. The anti-bribery provisions apply to “issuers,” “domestic concerns,” and “persons” other than “issuers or “domestic concerns.” A “person” other than an “issuer” or “domestic concern” can generally include foreign non-issuer companies and foreign nationals. The anti-bribery provisions will apply to such a “person” while he/she is in the territory of the U.S. As a general matter, the anti-bribery provisions prohibit the corrupt payment of money or “anything of value” to a “foreign official” in order to “obtain or retain business.”Moreover, whether one can be subject to FCPA liability for the actions of a third-party based on “knowledge” of the third-party’s conduct is a highly fact-dependent analysis. “Obtain or retain business” includes payments to a “foreign official” to secure a foreign government contract. However, the meaning of “obtain or retain business” is very uncertain. Given the Kay holding by the Fifth Circuit, it is a highly fact-dependent question whether a payment to a “foreign official” satisfies the “obtain or retain business” element outside the context of a specific foreign government contract. Furthermore, the anti-bribery provisions also contain one exception and two affirmative defenses. First, the anti-bribery provisions “shall not apply to any facilitating or expediting payment to a foreign official...the purpose of which is to expedite or to secure the performance of a routine government action by a foreign official”. Second, the anti-bribery provisions contain two affirmative defenses. The first is for the payment of “anything of value” “l awful under the written laws and regulations” of the foreign official’s country. However, it is impossible to find such written laws. The second is if the payment of “anything of value” “was a reasonable and bona fide expenditure, such as travel and lodging expenses, incurred by or on behalf of a foreign official...and was directly related to (A) the promotion, demonstration, or explanation of products or services; or (B) the execution or performance of a contract with a foreign government or agency thereof.”Under the FCPA, significant fines have been levied against U.S. corporations in anti-bribery provision related cases. Moreover, they are also levied against non-U.S. corporations that have agency relations with U.S. corporations. As the FTA between South Korea and the U.S. is in effect, South Korean companies are advised to review their compliance and training programs to ensure that those programs meet the standards articulated in many cases related to the FCPA. While it is almost impossible to instruct every single employee or agent, South Korean companies can take some small comfort in instituting and self-enforcing FCPA compliance and training programs.