국제뇌물방지법상 “부정한 이익을 얻을 목적”의 의미에 대한 검토

In order to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transaction (hereinafter “OECD Anti-Bribery Convention”), in South Korea, the Act on Combating Bribery of Foreign Public Officials in International Business Transactions (hereinafter “International Anti-Bribery Act”) has been enacted and implemented. The current International Anti-Bribery Act requires the “purpose of obtaining any improper advantage” in the establishment of a crime. Nevertheless, the Act does not define what such “purpose of obtaining any improper advantage” means, and there are no accumulated Supreme Court precedents regarding its meaning. Therefore, the purpose of this Article is to examine the meaning of the “purpose of obtaining any improper advantage” under the International AntiBribery Act by considering the OECD Anti-Bribery Convention and the U.S. Foreign Corrupt Practices Act (hereinafter “U.S. FCPA”). The reason why the International Anti-Bribery Act requires such purpose in the establishment of a crime is that the OECD Anti-Bribery Convention requires the ‘purpose of obtaining or retaining business or other improper advantage’ as one of the requirements for the establishment of the crime. In addition, The OECD Anti-Bribery Convention’s ‘purpose of obtaining or retaining business or other improper advantage’ is considered to be a result of reflecting the understanding of the U.S. Congress as well as the U.S. courts on the ‘purpose of assisting in obtaining or retaining business’ under the U.S. FCPA. The U.S. FCPA criminalizes bribery of foreign public officials only when it is done for the ‘purpose of assisting in obtaining or retaining business.’ In particular, in United States v. Kay, which has been recognized as a landmark case regarding the ‘purpose of assisting in obtaining or retaining business,’ the 5th Circuit Court of Appeals ruled that bribery to obtain favorable tax treatment, as well as bribery to obtain or renew a government contract, can be recognized as for the ‘purpose of assisting in obtaining or retaining business’ and emphasized that bribery to obtain favorable tax treatment allows the actor to take a number of unfavorable measures against competitors, thereby gaining an unfair advantage. Based on the review of the OECD Anti-Bribery Convention and the U.S. FCPA, it would be reasonable to interpret that the “purpose of obtaining improper advantage” under the International Anti-Bribery Act means the ‘purpose of obtaining competitive advantage (directly or indirectly) through illegal or undue execution of duties by foreign public officials.’ As such, acknowledging the “purpose of obtaining improper advantage” only if the actor ultimately aims to gain competitive advantage in international business transaction would be also in line with the purpose of the International Anti-Bribery Act, which is ‘contributing to the establishment of a sound order in international business transactions.’