「부정청탁 및 금품등 수수의 금지에 관한 법률」(소위 김영란법)의 헌법적 쟁점에 대한 고찰

A new anti-corruption law was passed by the National Assembly and signed by the President on 26 March 2015. The law is designed to better tackle graft among government officials mainly by eliminating the need to prove a direct link between graft and the favor that followed to secure a conviction, once an official receives more than 1 million won as graft. The legislation sets a maximum penalty of up to three years in prison or 30 million won in fines for bribery involving public officials. Corruption in the public sector remains a major problem in the Republic of Korea. Transparency International, a watchdog for political corruption, ranked Korea 43rd out of 175 countries in its perceived corruption index in 2014, leaving Korea far behind competing countries in Asia such as Singapore(7th) and Japan(15th). Some nongovernment officials such as journalists and private-school teachers are also subject to the law. And questions are raised as to whether including journalists, in particular, in the law while excluding other private sectors is against the equal protection of law and therefore unconstitutional. This paper argues that the question of which parts of private sector will be included in the law is a matter of discretion of the national legislature. Some legal experts further say that the law contains a couple of ambiguous terms such as "illegal solicitation" or "social common norms" and violates the vagueness doctrine. This paper finds out that such terms are already being used in the criminal code and some other related current legislations and therefore pose no problem of unconstitutionality. This paper rather argues that Article 8 of the Act raises a question of incompatibility by requiring a link between graft worth of less than 1 million won and a favor that followed, while not requiring a link between graft worth of more than 1 million won and a followed favor.