SOUTH KOREA Law and Practice Contributed by: Jeena Kim, Kyunghwan Lee, Eunyoung Row and Bochan Kim, Bae, Kim & Lee LLC
• where the public official or the arbitrator demands or promises a bribe; and • where the bribe is offered, demanded or promised to a related third party/intermediary. While the timing of the bribe is not important, the “bribery” described above after engaging in corrupt activities is also prohibited. Offering Bribes The act of offering a bribe includes instances where a person makes a statement of intent to offer a bribe, promises to offer a bribe and provides a bribe in the manner just described above. Public Versus Private Public sector bribery does not require proof of an “improper request” as long as the benefit relates to the official’s duties. In private sector cases, an “improper request” is necessary (eg, offering money to secure a bid). Courts have ruled that a bribe received “in con - nection with a public official’s duties” includes not only the legal duties of the public official but also the de facto duties of the official as well as the duties of the department to which the public official belongs. However, benefits unrelated to official duties (eg, gifts exchanged as social courtesy or due to personal rela - tionships) are excluded. Who Qualifies as a Public Official? “Public officials” refers to individuals performing a certain public function delegated by a state or local government. The statutes define a public official as follows. • The State Public Officials Act and the Local Public Officials Act: any person employed by a state or local government. • The Specific Crimes Act: any senior staff employee of a “state-owned” or “state-controlled” entity, which is listed in the Enforcement Decree of the Specific Crimes Act. • The Act on Administration of Public Entities: any director, officer or employee of a “public corpora - tion” and “quasi-government entity” is deemed to be a public official. A list of the public corporations and quasi-government entities is updated and
issued annually by the Ministry of Strategy and Finance. Foreign Public Official Under the FBPA, it is illegal to give, offer or promise benefits to foreign public officials to secure improper advantages in international transactions. A “foreign public official” under the Act refers to: • a person who provides a legislative, administrative or judiciary service for a foreign government; • a person to whom a business of a foreign govern - ment was delegated; • a person who works for a public statutory institu - tion/organisation; • a person who works for a corporation in which the investment made by a foreign government accounts for more than 50% of the paid-in capital, or which is controlled by a foreign government; and • a person who works for a public international organisation. South Korean law prohibits giving, offering or prom - ising benefits to foreign public officials to secure improper advantages in international business trans - actions. The legal framework does not differentiate significantly between domestic and foreign public offi - cials, as various statutes impose penalties for bribery and corruption regardless of the official’s nationality. Gifts, Hospitality and Exceptions South Korea generally treats gifts and hospitality as bribes. However, the Graft Act provides certain excep - tions for specific expenses related to official duties, social customs or rituals, within the following limits • Funerals and wedding contributions: KRW50,000, except in the case of condolence and congratula - tory flowers, where this is up to KRW100,000. • Gifts (excluding agricultural products or processed goods with more than 50% of agricultural or fisher - ies content): KRW50,000. • Gifts that are agricultural products or processed goods with more than 50% of agricultural or fisheries content: KRW150,000. This is temporarily (as per the Enforcement Decree). • Food and drink: KRW50,000.
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