국내뇌물죄와 해외뇌물죄의 비교 연구 - FCPA, UK Bribery Act 등 외국 법제로부터의 시사점을 중심으로 -

Recent years have witnessed a growing interest in foreign bribery due to the U.S. Foreign Corrupt Practices Act (FCPA), the U.K. Bribery Act,etc. Korea also enacted a law prohibiting foreign bribery pursuant to the OECD Convention on Bribery. There has been substantial convergence in many countries’ laws and enforcement relating to foreign bribery. Thus,a comparative study of such foreign bribery regimes could provide input helpful for improving domestic bribery laws. This Article first briefly explains the structure of the Korea bribery laws by separating out domestic and foreign bribery law provisions. This Article then compares domestic bribery and foreign bribery under Korean law. While the Korean law governing foreign bribery provides for vicarious liability, the domestic bribery laws in Korea do not contain a vicarious liability provision. This could give rise to significant differences in corporate criminal liability. In addition, the Korean foreign bribery law introduced the concept “profit obtained through an offence”in setting the limit or cap on the amount of fine imposed for foreign bribery. The Korean domestic bribery laws, on the other hand, lacks such concept. Further, this Article explains the scope of “public official” and permitted exceptions and defenses provided under different laws. This Article briefly introduce the U.K. and U.S. bribery laws. In connection with the U.K. bribery laws, I explain important provisions of the recently enacted U.K. Bribery Act and differences between the U.K. Bribery Act and the relevant Korean laws. Particularly, it is noteworthy that the U.K Bribery Act contains provisions making it a crime for a commercial organization to fail to prevent bribery, and a guidance published by the U.K. government sets out the “six principles”to demonstrate that “adequate procedures” have been taken to prevent bribery. With regard to the U.S. bribery law, I explain domestic and foreign bribery laws at the federal level. Particularly, I briefly examine important aspects of the FCPA, which has recently drawn considerable attention, and recent trends in its enforcement that could show how the U.S. government has addressed corruption issues. The U.S. government,threatening stringent corporate liability, has encouraged companies to adopt internal compliance systems, conduct internal investigations on any uncovered corruptive behavior and voluntarily report their findings to the U.S. authorities. By providing leniency to such voluntarily reporting companies, the U.S. government has made strides to improve efficiency in enforcement and enable the virtuous cycle of voluntary reporting and lenient punishment to take root as a well-established practice. Finally, this Article, based on comparisons with foreign laws, discusses whether there is any room for improving the Korean bribery laws and, if so, how such improvements could be achieved. Among other things, by emphasizing that there is no reason Korean law should treat domestic bribery laws from foreign bribery laws in terms of corporate criminal liability, I argue that the Korean laws governing domestic bribery should provide for vicarious liability. I further argue that the concept “profit obtained through an offence”, which is reflected in the Korean law regulating foreign bribery, should be incorporated into the domestic bribery laws as well. Also, I believe that it is imperative to establish specific guidance regarding the “reasonable supervision duty” which, if discharged, provides exemption from corporate vicarious liability, and I argue that putting in place sufficient anti-corruption compliance system and programs could serve as a basis for the discharge of the “reasonable supervision duty”. In my view, compliance systems and programs adopted in the U.S., U.K. and other countries could provide guidance for how progress could or should be made in Korea. In addition, I propose that Korea could improve its enforcement system by adopting or learning from the U.S.‘s voluntary reporting mechanism and leniency through plea bargaining and other types of negotiation with authorities. As anti-corruption has become a worldwide agenda, it is very important and imperative to compare and study the converging foreign bribery laws and related practices, thereby diagnosing and finding ways to improve domestic bribery laws and practices.