제3자를 위한 금품수수등의 행위시 청탁금지법 제8조에 의한 가벌성 여부 (The possibility of sanction by the Article 8 of “The Improper Solicitation and Graft Act” in case of taking the graft for a third party)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 28권 / 4호 / 211 ~ 232페이지
· 저자명 : 박수희

초록

It is prescribed in the Article 8 of “The Improper Solicitation and Graft Act that public official or relevant persons shall be prohibited to receive, request or promise to accept the financial or other advantages exceeds one million won at a time or 3 million won in every financial year from the same person, regardless of the relationship between such offer and his or her duties, and the motive for such offer, including contribution, sponsorship, donation, etc. And no public official or relevant persons shall accept, request or promise to receive any financial or other advantages not exceeding the amount prescribed by paragraph (1) in connection with his or her duties, regardless of whether such offer is given in exchange of any favors.
However it could be issued whether the recipient for a third person should be punished or not by this Article 8 of this Act, because there are no provions that be sanctioned against him or her in case of taking or requesting or promising graft by public official or relevant person for a third person in this Act.
It could be possible to punish the public official or relevant person by Article 8 of this Act that graft or request or promise to receive the money and other valuables for a third person, in spite of being not providing an express words. Not only any direct acceptance of financial or other advantages by public official or relevant person but also redirecting such act to a third party shall be prohibited. And this interpretation could be corresponded to the purpose this legislation and be well-founded and reasonable interpretation as compared the Criminal Act’s regulationsystem of bribe. It could be corresponded to the purpose of this law that prohibited any acceptance of financial or other advantage of public official or relevant person, and could be possible to punish the recipient of financial or other advantage indirectly through the third person.
The meaning of ‘request’ or ‘promise’ is not needed to interprete in a limited sense such as in case of only receiving himself or herself directly the graft in Criminal Act’s bribe, in that there is no provision like Criminal Act’s bribe provision for a third person. It could be corresponded to meaning of terms of Contribution or Sponsorship etc., in the article 8 and could not be analogical intertretation. However it could be estimated issue that this interpretation could be opposed to doctrine of ‘no law no crime’ is argued consistantly, so eventuallly it is needed to amend this Article 8 to come to an end this issue, separate from opinion that this interpretation could be possible.

영어초록

It is prescribed in the Article 8 of “The Improper Solicitation and Graft Act that public official or relevant persons shall be prohibited to receive, request or promise to accept the financial or other advantages exceeds one million won at a time or 3 million won in every financial year from the same person, regardless of the relationship between such offer and his or her duties, and the motive for such offer, including contribution, sponsorship, donation, etc. And no public official or relevant persons shall accept, request or promise to receive any financial or other advantages not exceeding the amount prescribed by paragraph (1) in connection with his or her duties, regardless of whether such offer is given in exchange of any favors.
However it could be issued whether the recipient for a third person should be punished or not by this Article 8 of this Act, because there are no provions that be sanctioned against him or her in case of taking or requesting or promising graft by public official or relevant person for a third person in this Act.
It could be possible to punish the public official or relevant person by Article 8 of this Act that graft or request or promise to receive the money and other valuables for a third person, in spite of being not providing an express words. Not only any direct acceptance of financial or other advantages by public official or relevant person but also redirecting such act to a third party shall be prohibited. And this interpretation could be corresponded to the purpose this legislation and be well-founded and reasonable interpretation as compared the Criminal Act’s regulationsystem of bribe. It could be corresponded to the purpose of this law that prohibited any acceptance of financial or other advantage of public official or relevant person, and could be possible to punish the recipient of financial or other advantage indirectly through the third person.
The meaning of ‘request’ or ‘promise’ is not needed to interprete in a limited sense such as in case of only receiving himself or herself directly the graft in Criminal Act’s bribe, in that there is no provision like Criminal Act’s bribe provision for a third person. It could be corresponded to meaning of terms of Contribution or Sponsorship etc., in the article 8 and could not be analogical intertretation. However it could be estimated issue that this interpretation could be opposed to doctrine of ‘no law no crime’ is argued consistantly, so eventuallly it is needed to amend this Article 8 to come to an end this issue, separate from opinion that this interpretation could be possible.

참고자료

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