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South Korea: Controversial Anti-Corruption Law Promulgated

(Apr. 16, 2015) On March 26, 2015, President Park Geun-hye of South Korea promulgated the Anti-Corruption Law (Act No. 13278 (Mar. 27, 2015), Korea Ministry of Government Legislation website (in Korean)). The Law won bi-partisan approval in the National Assembly on March 3, 2015, despite controversy over its possible violations of the country’s Constitution. (Park Sanctions Controversial Antigraft Bill, KOREA HERALD (Mar. 26, 2015).)

The Anti-Corruption Law is applicable to journalists and educators in public and private schools, in addition to public officials. It imposes a punishment of imprisonment not to exceed three years, or a fine of up to five times the amount accepted, on persons convicted of accepting money or monetary equivalent valued at more than one million won (about US$900) from one person in one installment, regardless of whether such compensation was in exchange for favors or related to the person’s work. (Anti-Corruption Law, art.8.) For gifts worth one million won or less, a fine of up to five times the gift’s value will be imposed. (Anti-Corruption Law, arts. 8 & 23.)

The passage of the Law generated strong criticism on many counts. On March 5, 2015, the Korean Bar Association, on behalf of Korea’s Official Gazette, the Korean Bar Association Newspaper, and the Korean Journalists Association, filed a petition with the Constitutional Court to contest the Law. (Jong-min Kim, Korean Bar Association Filed a Constitutional Petition for Kim Young-ran Law, DAILY HANKOOK (Mar. 5, 2015) (in Korean).) The petition alleges, among other complaints, that article 2 of the Law, which makes the Law applicable to journalists, restricts the freedom of the press and the right to equal treatment that are protected under the Constitution. (Id.)

The suit further alleges that article 5 of the Law, which defines what constitutes illegal solicitation of favors, is unconstitutional because the clause is too vague for ordinary citizens to understand. The Korean Bar Association explained in the complaint that “this law may have a chilling effect on the ordinary contact between a journalist and his source, reinforce journalists’ self-censorship, and be misused by the government as a means of controlling the press.” (Id.) The petition also points out that “the law violates journalists’ right to equal treatment by defining public officials to include journalists, a group that is completely different in character.” (Id.)

In addition, the complaint argues that the Law’s requirement for public officials to report the spouse’s receipt of illegal graft and to be subject to the related criminal penalty for failure to report such favors violates the principles of freedom of conscience and of liability with fault. (Anti-Corruption Law, arts. 9, 22, & 23.)

The Law is called the Kim Young-ran Law because Kim Young-ran had initially proposed the legislation. Kim is a former Supreme Court Justice and Chairwoman of the Anti-Corruption and Civil Rights Commission. (Park Sanctions Controversial Antigraft Bill, supra.) Amid the controversy, Kim declared that she did not find the inclusion of journalists and teachers in the Law “unconstitutional” because their work is largely public in nature. (Opinion: Originator Speaks Up, KOREA TIMES (Mar. 10, 2015).) She also stated that the controversy and the confusion created by the Law, which she translated as “resistance” to it, reflects “the ‘sentiment of corruption’ within us.” (Id.)

Prepared by Kyewon Noh, Intern, Law Library of Congress, under the supervision of Sayuri Umeda, Senior Foreign Law Specialist.