내부고발자 보호제도의 법적 문제점

On Legal Problem in the Protection of the Whistleblowing

In this essay, I aim to define the “whistleblowing” and the legal need to protect it. Moreover, I review the present prescriptions of the Korean law and their problem in critical perspective. The problem can be sum- marized as follows. Firstly, the present legal prescriptions do not provide the enough protection for the whistleblower. Particularly, the decision of the Committee Against Corruption does not have any enforcing effect. This is to be considered as a serious defect, because the prompt and sufficient legal protection is essential in “the Protection of the Whistleblowing.” Secondly, we have to reconsider the criminal responsibility of the whistleblower. Possibly, there are some whistleblowing cases which can also be violation of the Criminal Law. It is not very clear, however, that this kind of whistleblowing is a crime. Futhermore, we have some justifications which exempt the criminal responsibility of the whistleblower such as the Article 20 of the Criminal Law. Thirdly, on the financial reparations for the whistleblower, there is a critical opinion pointing that the rate and maximum of it is too low. Although this new prescription is not common in other legal systems- therefore, we can say that this is a quite progressive and even brave act -, but, too small reparations do not give enough motivation to stimulate whistleblowing and allow the objection that the law use egoistic economic desire. Fourthly and finally, there is a ethical limit in “the Protection of the Whistleblowing.” At first, whistleblowing which is untrue cannot be protected. Moreover, the private vengeance, even if it seems to be a whistleblowing, is not to be protected, either. For these two cases, we can say that the individual harm resulted from the whistleblowing exceeds the public interest which is the aim of “the Protection of the Whistleblowing.”