Making a difference towards a more transparent Korea

The Anti-Corruption and Civil Rights Commission (ACRC) announced that the Improper Solicitation and Graft Act will be enforced on September 28, 2016.

A culture of nepotism and paternalism has brought about widespread practices of solicitations and entertainment in Korea. Although such practices have long been recognized as the main cause of corruption and malaise undermining confidence in the public sector, the country lacked institutional mechanism to regulate them.

Recently, however, the Improper Solicitation and Graft Act was enacted as a comprehensive deterrent to improper solicitations and acceptance of financial or other advantages. The enforcement of the new Act is expected to lay the foundation for realizing an "upright Korea" where all can compete fairly, without having to resort to solicitations or entertainment.

Progress

It took over five years for the implementation of the Act since the ACRC raised the need for the Act as part of initiatives to create a fairer society at the Cabinet Council on June 14, 2011.

The bill went through the legislative process, from advance notice of the bill, consultation with related agencies, review by the Ministry of Legislation, to approval by the Cabinet Council, from May 2012 to July 2013. The bill was submitted to the National Assembly on August 5, 2013. The bill passed the National Assembly on March 3, 2015, and was finally enacted and promulgated on March 27, 2015.

For one and a half year since its enactment, the ACRC has carried out follow-up measures including training of the general public, promotion of the Act as well as drafting of the Enforcement Decree of the Improper Solicitation and Graft Act so that the Act could go into effect smoothly.

Scope of Application

The Act will apply to those working at 40,919 organizations, including constitutional institutions (e.g. the National Assembly, the Constitutional Court and other courts), central administrative agencies, local governments, public service-related organizations, public institutions, municipal or provincial offices of education, and media companies.

On an individual level, the Act will apply to "public officials or relevant persons," including civil servants under the State Public Officials Act or Local Public Officials Act, and persons deemed by other Acts as civil servants; the heads and employees of public service-related organizations and public institutions; the heads and employees of schools of various levels and educational corporations; and the representatives and employees of media companies.

The Act will also apply to "private persons performing public duties," including non-public official members of various committees under public institutions, and those who have an authority delegated from a public institution.

* For more details on the list of institutions subject to the Act and the standards, refer to the ACRC’s webpage (http://www.acrc.go.kr).

Main Content of the Act

a. Prohibition of Improper Solicitations

The Act prohibits any person from directly soliciting a public official or relevant person performing his or her duties, or through a third party obtaining improper solicitations. The Act clearly defines categories of improper solicitations to provide clear guidelines on how to handle legally prohibited actions, which are limited to actions related to 14 duties stipulated in the Act, including authorization or permission, personnel management, contract, subsidy, military service, investigation, judgment and adjudication. With regard to those duties, trading in influence in violation of the Act or exerting official authority by a public official or relevant person beyond the limits of his or her position and authority can be improper solicitations.

The Act prohibits a public official or relevant person who receives an improper solicitation from performing his or her duties as directed thereby, and any violation of this rule shall be subject to criminal punishments. If a public official or relevant person receives an improper solicitation, he or she shall clearly express an intention to refuse the solicitation. If a public official or relevant person receives the same improper solicitation again, he or she shall report such fact to the relevant agency.

A head of the relevant agency may take any of the following measures against a public official or relevant person who received an improper solicitation: provisional suspension of performing the duties related to the improper solicitation, designation of a substitute, and change of position.

b. Prohibition of Acceptance of Financial or other Advantages

The Act prohibits a public official or relevant person from accepting any financial or other advantage in excess of one million won at a time or three million won in a fiscal year from the same person, regardless of the relationship between such offer and his or her duties, and the motive for such offer, including contribution, sponsorship, donation, etc. Any violation of this rule shall be subject to criminal punishments of imprisonment for not more than three years or a fine not exceeding 30 million won. The Act also prohibits a public official or relevant person from accepting any financial or other advantage not exceeding 10 million won in connection with his or her duties, regardless of whether such offer is given in exchange of any favors. Any violation of this rule shall be subject to a fine for negligence of two to five times the value of the financial or other advantage related to the violation.

However, the Act specifies eight exceptions where certain financial or other advantages shall not constitute a financial or other advantage which public officials or relevant persons are restricted from accepting, in order to ensure the ordinary social relationships of public officials or relevant persons.

The exceptions include food and drink not exceeding 30,000 won, gifts not exceeding 50,000 won, congratulatory or condolence money not exceeding 100,000 won, financial or other advantages offered by relatives of a public official or relevant person, all of which are offered to facilitate performance of duties or for social relationships or rituals; and financial or other advantages that are permitted by any other Acts and subordinate statutes, standards or social norms.

Under the Act, any person who offers an unacceptable financial or other advantage shall be subject to the same punishments as the public official or relevant person who receives the financial or other advantage. A public official or relevant person who recognizes that his or her spouse has received an unacceptable financial or other advantage in connection with his or her duties, and fails to return it and report such fact shall be subject to punishments.

c. Restriction of Acceptance of Honoraria for Outside Lectures or Relevant Activities

The Act prohibits a public official or relevant person from accepting money as an honorarium for an outside lecture related to his or her duties in excess of the limits provided under Presidential Decree. Any public official or relevant person who intends to conduct an outside lecture or relevant activity shall report the details of the request for the outside lecture or relevant activity in advance to the relevant agency.

For public officials and employees of public service-related organizations, the hourly limit on honoraria for outside lectures is KRW 200,000 to 500,000 based on the Code of Conduct for Public Officials. As for employees of private schools, educational corporations and media companies, the hourly limit is one million won regardless of their positions.

* For a public official or relevant person whose rank is not clearly classified, the ACRC has offered a guideline. For more details on this, refer to ACRC’s webpage (http://www.acrc.go.kr).

If a public official or relevant person receives an honorarium exceeding the limits provided under Presidential Decree, he or she shall report such fact to the head of the relevant agency and return the money to the provider without delay. Any violation of this rule shall be subject to a fine for negligence not exceeding five million won.

d. Reporting of Violations, and Protection of and Rewards to Reporting Persons or Cooperators

Anyone who discovers that a violation of this Act has taken place or is taking place, may report it to the public institution where the violation of the Act occurs or to its supervisory body; the Board of Audit and Inspection or other investigative authority; or the ACRC.

In order to promote and facilitate the reporting of any violation of this Act, measures to protect and reward the reporting persons or cooperators have been put in place.

The Act stipulates measures to protect the reporting persons or cooperators, including the confidentiality of personal identity, personal protection, and the exemption of liability. The Act also strictly prohibits anyone from taking disadvantageous measures against any reporting person cooperator on grounds of their having reported or cooperated, and from either blocking the reporting or cooperation, or coercing the person who conducted such reporting or cooperation to withdraw the reporting or cooperation. Any violation of this rule shall be subject to criminal punishments.

Future Plan

The ACRC will spare no effort to successfully enforce the Improper Solicitation and Graft Act going forward.

The Anti-Solicitation Institution Division of the ACRC, which has been set up in line with the enforcement of the Act, will play a leading role in dealing with a number of tasks, such as the establishment and improvement of systems for prohibiting improper solicitations and the acceptance of financial or other advantages; support of tasks of public institutions of various levels related to the Act; authoritative interpretation on Acts and subordinate statutes; and the receiving and processing of reports of violation against the Act.

Given that the Act is a preventive measure to eradicate the practices of making improper solicitations and giving or receiving entertainment in Korea, the ACRC will continue to provide training and promotion to the general public as well as public officials regarding the Act.

"I believe the enforcement of the Improper Solicitation and Graft Act will serve as a significant first step towards a more transparent and fairer society, and at the same time be a turning point for Korea to become a more upright country," said Yung-hoon Sung, Chairperson of the ACRC.

Chairperson Sung also called for the continuous interest and support of the people in successfully enforcing the Act so that we can leave the next generation a more transparent society where anyone can compete fairly, without having to resort to solicitations or entertainment.