<독일과 한국의 제3자 뇌물수수죄에 대한 비교법 연구>

Abstract

In interpreting “illegal solicitation,” one of the elements that need to be satisfied in determining whether a person has committed the crime of accepting bribes for a third party stipulated under Article 130 of the Criminal Act, precedents take the view that the scope of illegal solicitation should be defined broadly and together with the relevant compensational relationship, which is another element to be considered in determining the applicability of Article 130. This interpretation is controversial in that it undermines the legislative intent to restrict the punishability of the act stipulated in Article 130, which can be inferred from the fact that the element “illegal solicitation” is present in Article 130 while Article 129 on the crime of accepting bribes does not contain such additional condition. However, such broad interpretation of “illegal solicitation” appears inevitable considering strong social intolerance for bribery and judicial tendency to ensure that no crime is left unpunished, and thus severely criticizing the position of precedents is difficult. From legislative perspective, the intent of legislators to restrict the scope of punishability of the crime of accepting bribes for a third party is fully acceptable. However, inserting the expression “illegal solicitation” must not be the only available way to meet this intent. This paper suggests that just as Germany has done, the Criminal Act should be amended so that the phrase “illegal solicitation” is deleted from Article 130. It appears appropriate that the aforementioned legislative intent is fulfilled by introducing an interpretive process under which whether a compensational relationship was established in connection with the duties of the public official who caused a bribe to be given to a third party is evaluated. Regarding the existence of such compensational relationship, the standard of proof should be the same as that required in determining whether a person has committed the crime of accepting bribes for him or herself; in other words, a nonspecific, comprehensive compensational relationship must be established. This relaxed standard of proof would be appropriate to uphold the principle that no crime should be left unpunished. In addition, possible excessive expansion of the scope of punishability could be addressed by (i) developing and applying specific criteria for the analysis of relations among the public official, the briber and the third party that receives the bribe, and (ii) restricting the presumption of compensational relationship in the event the act of providing benefit and the public official’s discharge of duties were conducted in accordance with the norms that contribute to preventing infringement of the impartiality of state functions and trust, which are the two values protected against bribery.