This paper deals with challenges and improvement measures of the Anti-Corruption and Bribery Prohibition Act (also known as Kim Young-ran Act or anti-corruption bill, hereinafter the anti-corruption bill). While caught in the middle of various controversies, this act was legislated in March 2015, expected to be enacted in September 2016.
Legislative intent of the anti-corruption bill, which is eradication of corruption and graft, can be shared among all as universal and valid that this act’s value and significance are easily obtained. Nevertheless, skeptical views exist with regard to fulfilling the legislation purposes with the contents of the bill. Hence, this paper thoroughly examines the anti-corruption bill in the jurisprudential sense and analyzes the results of surveys subjected to the general public and stakeholders on main issues of the bill. It is to make a multifaceted diagnosis of the current anti-corruption bill in order to prepare improvement measures for the act prior to its enactment.
Among the varied issues in relation to the current anti-corruption bill, the challenge posed to the act can be expressed in brevity by stating that the act tries to resolve the issue of ambiguity in subjects that the act is applied to with exceptive clauses. In other words, this act is likely to exhaust its energy on which act falls under the exception rather than which act is in violation of the concerned act. It lacks clarity in differentiating which act is an exceptive act that is allowed in the social rule as well as in an issue of particular equivalent value. The existing bill covers an expansive range of acts that may be against the bill. This paper formulates examples of such acts and asks the survey respondents to discern their illegality with an aim of comparing these outcomes. This comparison shows that while many cases jurisprudentially do meet the elements of crime under the anti-corruption act, a majority of people do not consider them as matters of significance.
Either in the sense of implications such survey results carry or in terms of outcomes of legalistic examination, it is clear that the present act needs to equip with more definite standards. To this end, together with consideration of crucial issues derived from the aforementioned challenge, this paper suggests 1) at the least, adding a requirement of ‘relevancy to duty.’ It is to avoid overly inclusive application of the existing anti-corruption act. Moreover, 2) in regard to inclusion of journalists into the subjects of legal application of the act, the paper suggests to plainly provide reasons for such inclusion or to bring other professions with strong public influence under the coverage or to exclude journalists from it. Further suggestions encompass 3) eliminating elements of ambiguity from the list of types of acts in violation of the bill and 4) an opinion on a clause of spouse’ accepting bribes that its removal still guarantees a legal ground for regulating corruption by spouses.