공직자의 이해충돌방지법에 대한 법적 고찰

Abstract

A “conflict of interest” is a conflict between the public duty and private interests of public officials, in which public officials have private interests which could improperly influence the performance of their official duties and responsibilities. By preventing and managing conflicts of interest of public officials in advance and prohibiting the pursuit of unfair private interests of public officials by law, public officials must perform their duties fairly and secure public trust in state and public institutions. Conflict of interest can be classified into ‘actual conflict of interest’, ‘apparent conflict of interest’, and ‘potential conflict of interest’. Institutional examples of preventing conflicts of interest of public officials include prohibiting the performance of duties in private interests, prohibiting external interests and external activities of public officials, prohibiting the pursuit of the interests of the public officials' own family members, restricting the signing of contracts with state agencies and public institutions, and restrictions on private business relations with external organizations of public officials. Regarding the use of undisclosed information by public officials, criminal penalties are deserved when public officials obtain profits in property or property by directly using undisclosed information they have learned on the job, as in the 「Financial Investment Services and Capital Markets Act」, Criminal punishment is also required for the act of causing a third party to acquire property or property interests by using undisclosed information learned on the job. In addition, it is possible to impose penalties in addition to confiscation and collection. Criminal penalties for obtaining property or property gains after retirement by using information that public officials have learned on the job and not disclosed to the outside (unpublished information) or for causing a third party to obtain property or property gains. The Conflict of Interest Prevention Act is to be implemented from the day one year has passed since it was promulgated. However, it is worth considering legally whether this law can be applied retroactively to govern past behavior. As in this case, it is whether the retrospective application of the newly enacted law for public officials or former and current employees of the Korea Land and Housing Corporation (LH) seeking private interests in situations of conflict of interest is an exception to the retrospective legislation under the Constitution. When a public official purchases or trades real estate, etc. in advance using undisclosed information related to job duties, it can be said that the public official can predict that retroactive legislation will be enacted. In addition, this is a case in which a very serious public interest in which the public interest of stabilizing housing and land prices against a surge in real estate prices takes precedence over the request for trust protection justifies the retroactive legislation. Therefore, the constitutional justification is recognized even if retroactive application is stipulated in the supplementary provisions of the Conflict of Interest Prevention Act because it falls under the exception of the retroactive petition legislation.