미국 해외부패방지법(Foreign Corrupt Practices Act; FCPA)에 따른 관할권의 역외적용

In 1977, the United States enacted the FCPA in response to the Watergate scandal, intending it to have a large impact on American business. Since the 1998 amendments to the FCPA, however, a foreign company is subject to the FCPA “if it causes, directly or through agents, an act in furtherance of the corrupt payment to take place within the territory of the United States.”The 1998 Amendments greatly enlarged the assertion of U.S. jurisdiction over U.S. nationals who commit prohibited acts abroad and over foreign nationals who commit an act in furtherance of violations of the FCPA in the territorial United States. The jurisdictional reach of the amended FCPA with regard to foreign nationals extends to virtually any contact with the United States. A telephone call to the United States, a letter mailed to the United States, the use of air or road travel, or the clearing of a check or wire transfer of funds through a financial institution in the United States apparently are sufficient predicates for jurisdiction, so long as the act in some way furthers a violation of the FCPA. The effects doctrine extends even farther the potential reach of U.S. jurisdiction over foreign nationals. Even though due process requires that an accused have “minimum contacts” with the forum, under an effects analysis, evidence that a foreign national caused a prohibited action to be taken in the United States by a third party could be the predicate for U.S. subject matter and in personam jurisdiction over a foreign national, even one who was never physically present in the United States. Fortunately, the proscriptive zeal of the FCPA is restrained by international law which imposes a requirement of reasonableness on the exercise of both proscriptive and enforcement jurisdiction. Under this standard, the interests of the foreign sovereign in which the foreign national resides must be weighed against the interest of the United States in enforcing its laws. As the FTA between Korea and the U.S. is in effect, it is necessary to review the FCPA's jurisdictional component and its problematic extraterritorial reach, and illustrate a proposal to limit that reach in conformance with international law.