회사의 부패행위로 인한 민사법적 법률관계 (Civil Law Consequences of Corruption in a Company)

서지정보

· 발행기관 : 한국상사판례학회
· 수록지 정보 : 상사판례연구 / 26권 / 3호 / 243 ~ 298페이지
· 저자명 : 정대익

초록

This study is about the legal issues related to corruption from the viewpoint of the civil law. So far, legal attention has been paid to the means of criminal and administrative law to control and to impose sanctions on corruption. However, it has not been so fully successful to combat corrupt practices. This is the very motive of this study which seeks for the possibilities of the civil law to prevent corruption The conclusion of this study is summarized as follows; Not only the contract to require the payment of a bribe, but also the main contract entered into by a bribe is legally invalid because of a violation of good customs(§ 103 Korean Civil Code. The invalidity of the main contract is irrespective of the fact that it has some advantages to the party whose agent has received the bribe. The demand of the good customs in the Korean Civil Code is based on the basic understanding of society. Also, it is not at the contract party's disposition so that the main contract is conclusively null, not voidable or affirmable.
The principal of the bribed agent can claim for disgorgement of the received bribe from him, but the briber has no right to demand from the principal the return of the bribe as unjust enrichment due to the infringement of good morals(§ 746 Korean Civil Code) only on the side of the briber.
The principal of the bribed agent can claim for damages based on tort(§ 750 Korean Civil Code) against both the bribing agent and his principal. The latter is also liable for the bribery of his agent due to the vicarious liability(§ 756 Korean Civil Code) or special articles like § 35 Subsection 1 Korean Civil Code 1 or § 210 Korean Commercial Code or pre-contractual fault(culpa in contrahendo). In order to prove the damage of principal of the bribed agent, only evidence of the bribe itself is sufficient, because it is presumed prima facie that the principal has suffered damage corresponding to the disadvantage of the contract induced by a bribe. The bribe was incorporated into the contractual price.
The director of a corporation should establish and maintain an internal control system to find, monitor and manage the risk of corruption. If the risk management system is not implemented, the director is liable for the damage caused by lack of the risk control system. In conclusion, it would be more effective for combating corruption to combine the at present dominating means of the criminal and administrative law and those of the civil law. Especially, the latter can provide more effective measures than the former to restrain economic incentives of the bribery.

영어초록

This study is about the legal issues related to corruption from the viewpoint of the civil law. So far, legal attention has been paid to the means of criminal and administrative law to control and to impose sanctions on corruption. However, it has not been so fully successful to combat corrupt practices. This is the very motive of this study which seeks for the possibilities of the civil law to prevent corruption The conclusion of this study is summarized as follows; Not only the contract to require the payment of a bribe, but also the main contract entered into by a bribe is legally invalid because of a violation of good customs(§ 103 Korean Civil Code. The invalidity of the main contract is irrespective of the fact that it has some advantages to the party whose agent has received the bribe. The demand of the good customs in the Korean Civil Code is based on the basic understanding of society. Also, it is not at the contract party's disposition so that the main contract is conclusively null, not voidable or affirmable.
The principal of the bribed agent can claim for disgorgement of the received bribe from him, but the briber has no right to demand from the principal the return of the bribe as unjust enrichment due to the infringement of good morals(§ 746 Korean Civil Code) only on the side of the briber.
The principal of the bribed agent can claim for damages based on tort(§ 750 Korean Civil Code) against both the bribing agent and his principal. The latter is also liable for the bribery of his agent due to the vicarious liability(§ 756 Korean Civil Code) or special articles like § 35 Subsection 1 Korean Civil Code 1 or § 210 Korean Commercial Code or pre-contractual fault(culpa in contrahendo). In order to prove the damage of principal of the bribed agent, only evidence of the bribe itself is sufficient, because it is presumed prima facie that the principal has suffered damage corresponding to the disadvantage of the contract induced by a bribe. The bribe was incorporated into the contractual price.
The director of a corporation should establish and maintain an internal control system to find, monitor and manage the risk of corruption. If the risk management system is not implemented, the director is liable for the damage caused by lack of the risk control system. In conclusion, it would be more effective for combating corruption to combine the at present dominating means of the criminal and administrative law and those of the civil law. Especially, the latter can provide more effective measures than the former to restrain economic incentives of the bribery.

참고자료

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