SOUTH KOREA Law and Practice Contributed by: Soo Bong Jung, Jinwook Song, Jinwon Choi and Jiyoung Sohn, Bae, Kim & Lee LLC
3.2 Bribery, Influence Peddling and Related Offences Several statutes in Korea regulate bribery and influ - ence-peddling offences, including the Anti-Graft Act, the KCC, the FBPA and the Act on Anti-Corruption and Establishment of the Civil Rights Commission. The KCC The KCC provides for two distinct bases of criminal liability associated with bribery: • the bribery of public officials (“official bribery”); and • the bribery of employees of private companies (“commercial bribery”). Official bribery Under the relevant statutory provisions, to establish official bribery, the prosecutors must prove the fol - lowing: • an economic benefit has been given to a public official in connection with their official duties; and • the benefits conferred go beyond the bounds of what is customary or that is usually given as a mat - ter of social courtesy. A public official is defined as any employee of a gov - ernment entity such as a government agency, minis - try or armed services. In addition, certain employees of state-owned or controlled enterprises, as well as government-owned or controlled academic institu - tions, may also be viewed as “public officials” with regard to bribery. The court would consider the following factors to determine whether benefits were provided “in con - nection with public officials’ duties”: • the scope of the official’s actual duties; • the historical relationship between the official and the giver; • the amount or value of the benefits provided; and • the circumstances surrounding the provision of benefits. Public officials who accept bribes may face life impris - onment based on the amount of the bribe, while the provider of such improper benefits may face up to
five years of imprisonment or a criminal fine of up to KRW20 million. Commercial bribery: The KCC and the Specific Crimes Act Under the commercial bribery provision, the KCC prohibits the provision of economic benefits to a per - son who is entrusted with conducting the business of another person, if such benefits are related to an improper request made in connection with the duties of the recipient. A provider of a commercial bribe may face up to two years of imprisonment or a criminal fine of up to KRW5 million. Under the Act Concerning Aggravated Punishment of Specific Crimes (the “Specific Crimes Act”), the offer - ing and taking of economic benefits by an officer or an employee of a financial institution in connection with the performance of their duties is prohibited. Under the Specific Crimes Act, the official or employee of a financial institution who accepts bribes may face life imprisonment based on the amount of the bribe, while the provider of such benefits may face up to five years of imprisonment or a criminal fine of up to KRW30 million. The FBPA Under the FBPA, any person who intentionally offers, promises or pays a bribe to a foreign public official in order to obtain improper advantages in connection with international commercial transactions may be subject to criminal punishment. Even foreign nationals engaged in the bribery of a foreign public official within Korea may be subject to punishment under the FBPA. Under the FBPA, the provider of a bribe may face up to five years of imprisonment and a criminal fine of up to either KRW20 million or twice the total profits obtained through the bribe if those profits exceed KRW10 mil - lion, whichever is higher. In addition, the company may concurrently incur a criminal fine of up to KRW1 billion or twice the total profits if those profits exceed KRW500 million, whichever is higher. Anti-Graft Act Under the Anti-Graft Act, any individual who offers, promises or provides anything of value in excess of (i) KRW1 million in a single instance or (ii) KRW3 million
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