한국과 미국에서 공직자의 금품수수행위에 대한 형사제재의 비교-뇌물죄의 구조적 한계와 부정청탁 및 금품 등 수수의 금지에 관한 법률의 역할을 중심으로

In Korea or elsewhere, the core of anti-corruption measures lies in prohibiting bribe-taking by public officials. Of note, the legislative purpose of the Improper Solicitation and Graft Act of Korea (hereafter “Improper Solicitation Act”) took effect in 2016 amid huge controversy lies in widening the applicable scope of bribery statutes that impose criminal sanctions against public officials for receiving bribes. Prior to the implementation of the Improper Solicitation Act, the scope of applicable statutes regarding the crime of accepting bribes was much broader than what the public expected when compared with the Hobbs Act (U.S.) that mainly prescribes bribery and illegal gratuity statutes. However, there are structural limits to applying Korea’s existing bribery statutes in cases of receiving bribes for a favor and committing extortion under the guise of performing official duty. The Improper Solicitation Act focuses on punishing acts of bribe-taking in exchange for unspecified favors. As seen in the recent “Choi Soon-sil” scandal that has rocked the nation, the act of extortion under the guise of performing official duty, a gray area between bribery and blackmail, falls under the scope of the crime of abuse of authority but there exist obvious limits as to applying adequate criminal sanctions. This article aims to: (i) compare the criminal sanctions against public officials taking bribes in Korea and the U.S.; (ii) examine the structural limits of bribery statutes and countermeasures of both countries; and (iii) explore the role of the Improper Solicitation Act.