“부정청탁 및 금품 등 수수의 금지에 관한 법률”(일명 ‘김영란법’)의 헌법적 쟁점과 개선과제

Although South Korea has developed into one of the world's top 10 trading nations, it has not developed to a commensurate level in terms of transparency and integrity in politics and society. The Corruption Perceptions Index (CPI) published by Transparency International (TI) shows a steady increase, but the trend must still be monitored. According to ‘the 2024 Overall Results of the Corruption Perception Survey’ by the Anti-Corruption and Civil Rights Commission, 57.1% of the general public responded that "our society is corrupt (very corrupt + somewhat corrupt)." This represents a 5.2% increase from 2016, when ‘The Improper Solicitation and Graft Act(so-called Kim Yong-ran Act)’ was enacted. I believe that these facts demonstrate the necessity and legitimacy of the anti-corruption law such as ‘The Improper Solicitation and Graft Act’ in our society. Although there are some who criticize the Kim Young-ran Act as a result of legislative populism that was hastily created based on political logic, the prevailing opinion is in favor of the motive and purpose of enacting this Act. As reviewed, even from the perspective of constitutional principles and the principle of restriction of fundamental rights, it cannot be concluded that this Act is unconstitutional. Therefore, the controversy over the unconstitutionality of the Kim Young-ran Act should not be used as an excuse to hinder the operation of this Act. The insufficient part of this Act need to be addressed through institutional improvements such as the revision of the law and enforcement ordinance as well as the improvement of civic awareness. This article presented the following improvement tasks:First, we must actively consider expanding the scope and application of ‘The Improper Solicitation and Graft Act(so-called Kim Yong-ran Act)’ to include industries with strong public interest requirements such as finance, healthcare, qualified professions like law, construction and civic groups, In the long term, it should also be expanded to cover the entire private sector. Furthermore, one of the various forms of media in modern society, internet portals, should be included as a subject of application. Second, Although the Constitutional Court ruled that it was constitutional, the ambiguity of the concepts stipulated in ‘The Improper Solicitation and Graft Act(so-called Kim Yong-ran Act)’ and its enforcement ordinances (e.g., improper solicitation, social norms, gifts, etc.) and the imbalance in penalties based on monetary thresholds and areas also undermine legal stability. In order to maintain consistency in practical application and ensure legal stability, the Anti-Corruption and Civil Rights Commission should regularly provide guidelines according to the legal principles established in case law and the authoritative interpretations by the Ministry of Government Legislation. Third, the standards for imposing criminal penalties and administrative fines for prohibiting and punishing the acceptance of money or other valuables require reexamination. Even if we acknowledge that monetary considerations are unavoidable, we believe it is appropriate to impose administrative fines for accepting money or other valuables worth less than 1 million won, regardless of whether the act is related to one's job(of course, exceptions may apply in this case as well). And in cases where the amount exceeds 1 million won per instance(or 3 million won per fiscal year), in order to prevent blind spots in punishment for bribery, the punishment should be imposed without requiring job-relatedness as in the current law. However, if the scope of application is further expanded to the private sector, unlike public officials, it is necessary to improve the law by requiring ‘job-relatedness’ in the private sector to block the possibility of claims of excessive legislation. If job-relatedness and quid pro quo are recognized, then it would be reasonable to punish bribery regardless of the amount. Furthermore, for entertainment and other forms of entertainment that are difficult to quantify in monetary terms, it would be reasonable to separate the provisions so that criminal penalties or administrative fines can be imposed solely on the fact of receiving such entertainment. Fourth, the enforcement procedures for ‘The Improper Solicitation and Graft Act(so-called Kim Yong-ran Act)’ are complex, encompassing sanctions and processing procedures within the relevant organization, procedures for supervisory and investigative agencies, procedures for the Anti-Corruption and Civil Rights Commission(Competent authority), and punishment and processing procedures for judicial authorities. This can lead to confusion and potentially unequal treatment. To address this, measures are needed to increase the Anti-Corruption and Civil Rights Commission's staffing and strengthen its enforcement power. The establishment of a dedicated division and additional staffing within the judiciary should also be considered. Fifth, in relation to cases of violations of ‘The Improper Solicitation and Graft Act(so-called Kim Yong-ran Act)’, which are easier to punish than bribery cases requiring proof of job-relatedness and quid pro quo, there is a need for measures to prevent abuse of power, such as ‘sweeping investigation’(or dragnet investigation) and ‘pretextual investigation’(or secondary charge investigation) by investigative agencies. In addition, policies are needed to prevent the balloon effect, where crackdowns on crimes lead to crimes in other directions.