Article 357 of the Criminal Code prohibits giving an economic benefit to a person who is entrusted with conducting the business of another person in connection with such person’s duties. Unlike the domestic public official bribery described below, the offence of private commercial bribery requires proving that an improper request was made to the recipient of the bribe. Once private commercial bribery is established, both the recipient and the giver of the bribe can be penalised.
Domestic public official bribery is primarily governed by Articles 129 to 133 of the Criminal Code. A public official is prohibited from receiving an economic benefit in connection with the public official’s duties. The giver of the bribe can also be penalised.
The term ‘public official’ includes persons defined as, or deemed to be, public officials through various statutes:
- The State Public Officials Act and Local Public Officials Act: a public official is defined as any person employed by a state or local government.
- The Act on the Aggravated Punishment of Specific Crimes (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 Act on the Aggravated Punishment of Specific Crimes (the Specific Crimes Act), is deemed to be a public official.
- The Act on Administration of Public Entities: any director, officer or employee of a ‘public corporation’ 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.
- Other statutes: any individual performing a certain public function delegated by a state or local government is also deemed to be a public official pursuant to various other statutes.
Unlike private commercial bribery, establishing public official bribery does not require showing that an improper request was made to the recipient of the benefit. It is sufficient that an economic benefit received by a public official is in connection with such public official’s duties. In determining whether an economic benefit received is in connection with a public official’s duties, the Supreme Court of Korea has considered not only the duties of the public official as prescribed in the applicable laws, but also the de facto duties and the duties of the division to which the public official belongs. However, if giving a gift or other economic benefit under the circumstances is consistent with a social custom or courtesy or if a benefit is given because of a personal relationship between the public official and the giver, such benefit is deemed not to be in connection with the public official’s duties.
Article 3 of the FBPA prohibits any person from promising, offering or disclosing an intention to offer a bribe to a foreign public official (including any person holding a judicial office of a foreign government, exercising a public function for a foreign government or public international organisation, or working for a public enterprise carrying out a specified public function), in connection with the public official’s duties in an international commercial transaction, for the purpose of gaining an improper benefit.
The criminal laws of South Korea apply to:
- both Korean nationals and foreign nationals who commit crimes within the territory of South Korea (Article 2, Criminal Code) − the prevailing view is that a crime is ‘committed within the territory of South Korea’ if either any part of the criminal act occurs in South Korea or its effects are felt within South Korea;
- all Korean nationals who commit crimes outside the territory of South Korea (Article 3, Criminal Code); and
- foreign nationals who commit crimes outside the territory of South Korea, if and only if such crime is against South Korea or its nationals, provided that the criminal laws of South Korea shall not apply if the act is lawful under the laws of the nation in which the act occurred (Article 6, Criminal Code).
Bribery is considered a crime against South Korea and its nationals. Because of this, a foreign national can be held liable for his or her actions under the bribery offences in the Criminal Code, even if those actions occurred outside South Korea.