민간부패의 개념과 가벌성 - 민간부패 처벌 법제의 정비를 위한 소고 -

Corruption in the private sector has become a major task of crime policy. But current crime policies show their limits when facing this task, because they have up to now focussed on corruption in the public sector. This problem is further complicated by the fact that criminal provisions against corruption in the private sector are now inconsistently scattered in many individual laws. It is urgent to develop a crime policy to prevent and reduce corruption in the private sector. For this purpose, this article has attempted to examine what corruption means, and whether and why it is punishable not only in the public sector, but also in the private. Indeed, there is no universal definition of corruption. But from the angle of the criminal law doctrine (Strafrechtsdogmatik) corruption can be defined as the behavior of an agent who receives benefit from a third person and giving benefit to a third person by violating his duty to his principal. If an agent is a government official, and thus his principal is a state, then corruption is classified into corruption in the public sector. If, on the contrary, the agent and his principal are both civilians, corruption belongs to corruption in the private sector. The culpability of private-to-private corruption can be sought in the fact that it breaches the duty to manage another’s business fairly or harms fair competition in the market. Examples of the former are Art. 322novies Swiss Criminal Code (“accepting bribes”) and Sec. 309 Austrian Criminal Code (“acceptance of gifts and bribery of employees or agents)”; an example of the latter is Sec. 299 German Criminal Code (“taking and giving bribes in commercial practice”). Penalizing private-to-private corruption for ensuring the duty of fair management of another’s business is able to contribute to fight against corruption in general effectively, but creates also the risk of being misused to interfere in the freedom of action of civilians. However, this risk could be significantly reduced, if a business has a public character and can therefore be treated more or less as an official business. On the other hand, in the field of commercial practice corruption can be criminalized for ensuring fair competition in the market as an essential prerequisite for a modern economic system. It is remarkable that nowadays legislators in many countries tend to protect conditions of fair competition not only in business transactions, but also in sport which has gained in significance. This leads us to the question whether fair competition in sport can be a legal good (Rechtsgut) that should be protected by criminal law. It may be concluded from the above that penal provisions against private-to-private corruption in many individual laws can be categorized into three groups: provisions to protect the legal good “fair management of another’s business”, those to protect the legal good “fair competition” and those to protect these legal goods at the same time. This categorization could serve as a starting point for a fair and effective anti-corruption criminal legislation. [Keywords：fair competition, bribery, corruption in the private sector, fair management of another’s business, Art. 357 Korean Criminal Act]