부정청탁방지법안 상 금품 등 수수행위의 직무관련성 － 미국 불법사례수수죄를 중심으로 －

Abstract

Recently, fierce debates are on the table regarding the 「Bill on the prevention of Unjust Solicitations and Conflicts of Interest」(hereinafter "the Bill") which includes relations with public duty clauses as an element of crime in accepting illegal money, etc. The Bill referred to the Illegal Gratuity Statute of 18 U.S.C 201(c), which includes "for or because of any official act performed or to be performed by such public official" as an intent element. The intent element in illegal gratuity statute has been construed in different ways. The first theory is that its intent means comprehensive relations with the official position itself. The second one is illegal gratuity has to do with specific official act and it should aim at enhancing the possibility of favorable treatment for the provider side. The third analysis is the intent means the mere reward for the specific official act. Korean provision on the accepting illegal money, etc. also needs subjective elements of crime, i.e. relations with public duty clauses considering its gravity in Korean culture and similarity with bribery in its unlawful nature. However, the scope of relations with public duty clauses should be interpreted more broadly than that of illegal gratuity statute in United States because the purpose of legislation in Korea is to stamp out corruption rather than choose illegal gift out of proper lobbyist activity.