「부정청탁 및 금품등 수수의 금지에 관한 법률」 (소위‘김영란법’)의 문제점과 개선방안에 관한 연구

The Korean corruption perception index remains in the lower ranks of the members of the Organization for Economic Cooperation and Development, the 27th of all the 34 countries. It is well-known that the Korean government has made an effort to prevent and root out illegality and corruption by providing laws and institutional strategies without getting effectiveness or finding a basic solution. As a result, the Law of the Prohibition of the Improper Solicitation and Graft Act and the Acceptance of Financial or Other Advantages(LPIS) was enacted on March 3, 2015, and put into force from September 28, 2016. The improper Solicitation and Graft Act includes the Prohibition of Improper Solicitations and the Prohibition of Acceptance of Financial or other Advantages. Public official or relevant person shall not accept unacceptable financial or other advantage and shall not accept, request, or promise to receive as well. Regulating such limitation intends identical goal as the Criminal Act`s Aceeptance of Bribe. The Improper Solicitation and Graft Act applies different amount of fine depending on the value of the financial or other advantages received by public official or relevant person. However, evaluated as a rough-and-ready rule without passing through public opinions much enough, this law has been criticized for its unconstitutional factors, such as lacking in a clear conception of improper solicitation and including the persons concerned in private schools and media. The Constitutional Court ruled that the law was constitutional in “the case related to confirming whether or not Ma-List, Act 1, Article 2 of LPIS is unconstitutional.” That decision of dismissal has enforced LPIS without fail, but the law still has several legally controversial issues and imperfections referring to the parts against which a petition was not filed yet—for instance, limiting the reward as of outside lectures. The core contents of the development plan of several issues related to LPIS are as follows. First of all, we should establish clear concepts about improper solicitation. It is reasonable that the distinction standard between just and unjust solicitation be based on the purpose of the request rather than social rules. Second, the subject to be applied by LPIS should arguably include executives and staff members of financial companies instead of the parties of private schools and media. The law should be revised in this direction. Third, the administrative agency or chief supervising the public officials should have the authority to charge and collect a fine directly. Fourth, it is proper that the particular price range of material benefits, exceptionally allowed according to the enforcement ordinance of LPIS, should be raised toward 50,000 won in food and drink, 100,000 won in gifts, and 150,000 won in tribute. Nevertheless, the limit on tuition fee of outside lecture under article 10 of the‘prohibition on solicitation’ is open to criticism interlinked with the expansion of the scope. Since it’s difficult to avoid the criticism just by making up for implementing ordinances, revision of law will be required in the future. Obviously there’s a limit in strictly controlling the tuition fee by the law which is decided by the market principle. So it is appropriate to either limit the scope of duty to official one or limit the subject of punishment by the item 1 of article 10 to public officials and personnel of public service related organization only. Also it is necessary to consider‘100 thousand won’as a standard which is allowed for expenses of food, gift, congratulations and condolences. Considering the purpose of legislation is to realize a transparent society, proposing higher standard might cause a criticism. However it is better to focus on stable implementation of the law in its initial period rather than to repeat time-consuming disputes caused by social resistance. For the price standard by the code of conduct for officials however, it is more appropriate to keep it unchanged to avoid criticism that the implementation of‘prohibition on solicitation’even eases the standard for the officials.