사전수뢰죄에 있어서 청탁의 법리에 대한 재해석

Reinterpretation of Unjust Solicitation in Advance Acceptance: in connection with Supreme Court 1000.9.7, 99do2569

South Korea’s economic indicators is not far from the top 10. But its Corruption Perceptions Index(CPI) according to Transparency International has been within the top 40 for a long time as well, showing a significant deviation from the economic indicators. Plus in the execution of the OECD anti-bribery act Korea is classified as ‘passive follower’which is not an improvement from the last year, and there has been no policies to try to improve it. Civil servant corruption level from 2011 June anti-corruption network’s research shows that 61.9% answered that bribes affect the administrative process, and 57.5% answered that it was customary to provide money or valuables in public affairs. Corruption index of politicians, public officials, and businessmen seem to have evolved on a completely different level from the normal citizens,and while there have been attempts the chances of improvement seem slim. So it is interesting to note the Supreme Court case that actually supports the formation of corruption legally. It is a ruling from 10 years ago so it may seem to be reflecting on the political landscape of the time,but it shall be looked at in more detail because in fact it has not been overruled and is still being used as a standard in recent corruption cases. The following is the reason this case study shall focus on. According to a publishing about the investigation of a leader of a certain regional autonomous body, the court has declined a warrant from the prosecution based on our 1999 precedent. This precedent concerns the criminal law article 129 clause 2 about Advance Acceptance, and there are very few other precedents - especially rare are those about the common ‘implicit request.’So this precedent has now been resurfaced as a critical basis for Advance Acceptance in the court. Because this precedent is used so widely and yet is virtually unknown in the academia or the routine I have researched the precedent, and have concluded that it does not agree with either the legal philosophy or with other precedents in terms of fairness. So even though the case is more than 10 years old, it is being used by the court today as a precedent, so it was deemed necessary to re-evaluate this case and conduct more in depth analysis.