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Constitutional Court upholds antigraft law

July 29,2016
The Constitutional Court ruled Thursday that a sweeping new graft act, scheduled to take effect in two months, is constitutional, rejecting all petitions challenging its scope and vagueness.

The court rejected all constitutional challenges to the Improper Solicitation and Graft Act, often referred to as the Kim Young-ran law after the former head of the anticorruption commission who authored the initial draft, ruling that the law is legitimate.

After years of debate, the National Assembly passed a tough antigraft bill in March 2015 despite worries about its scope. The act is scheduled to take effect Sept. 28, 2016.

The law defines “public officials” broadly. Aside from civil servants and lawmakers, teachers at private schools and journalists are covered because the bill considers their work public. Even their spouses are covered.

Immediately after the National Assembly passed the law last year, the Korean Bar Association, the Journalists Association of Korea, representatives of Internet media, private schools and kindergartens filed petitions.

The main part of the ruling was whether it is constitutional to apply the law to journalists and private school workers since they are not civil servants.

The court ruled that the law does not violate freedom of action and equal rights guaranteed in the constitution by including journalists and private school workers in the scope of “public officials.”

The petitioners argued that applying the law to journalists and private school teachers is an infringement upon freedom of press and private schools. They also said forcing the journalists and private school teachers to report their spouses’ reception of gifts would infringe upon their freedom of conscience.

Seven out of the nine justices ruled that applying the law to journalists and private school teachers as well as their spouses is constitutional.

“Education and media have great influence over the country and society, and their corruption has serious implications, causing widespread, long-term damage, while recovery is impossible or nearly impossible,” the court said. “Journalists and private school teachers are required to have the transparency and impossibility of influence-buying equal to that of civil servants. Only then will education give righteous values and a sense of community to students and the press can make accurate reports and monitor all powerful people in politics, the economy and society.”

According to the law, a public official will face criminal punishment for receiving money or favors deemed expensive. A gift worth more than 1 million won ($880) or accumulated gifts worth more than 3 million won a year are punishable. In addition, entertainment such as expensive meals, rounds of golf or paid vacations are covered by the law.

The specific enforcement guidelines published by the anticorruption commission in May said accepting a gift worth 50,000 won or receiving more than 100,000 won in cash for a wedding or funeral will be illegal.

Being treated to a meal by job-related contacts is also a violation of the law if it costs more than 30,000 won.

The court also said offering expensive gifts exceeding limits stipulated in the new law to journalists and private school teachers is not tolerable based on common sense.

The court said it is not excessive to require journalists and private school teachers to report their spouses’ reception of gifts. Five out of nine judges said the clause is constitutional.

The court also ruled that the definition of “improper solicitation” is not ambiguous based on common sense. All nine judges agreed on this ruling.

“Improper solicitation is a term already used in various laws including the Criminal Act. The Supreme Court also has many precedents on improper solicitations,” the court said. “The law also gave detailed explanation of improper solicitation by presenting 14 specific cases.”

“Some argued that the law will discourage economic growth, but we have seen proof in advanced countries that a country advances when corruption decreases,” the court said. “Based on this situation, the law does not excessively violate basic rights.”

The Anticorruption and Civil Rights Commission, which proposed and will oversee the implementation of the law, welcomed the ruling. “We have high anticipation that the law will eradicate corruption and irregularities in our society and drastically improve transparency in the country,” said Gwak Hyeong-seok, anticorruption bureau chief of the commission.

The commission said it will consult with the Ministry of Government Legislation to finalize detailed enforcement decrees for implementation in September. It will also publish manuals for each profession covered by the law and host lectures.

Major business lobbies, including the Federation of Korean Industries and the Korean Chamber of Commerce and Industries said they respect the Constitutional Court’s ruling. They still expressed concerns that the law will weaken the already sluggish economy by discouraging domestic spending.

The Journalists Association of Korea issued a statement to protest the ruling. “We are concerned that the law will be used to gag the press,” it said. “We will closely monitor whether the law enforcement authorities try to use the law to restrict normal investigative activities and tame the press.”

After the top court ruled the anticorruption law constitutional, a National Assembly plan to revise it before September faced an obstacle. Lawmakers representing farming and fishing villages as well as concerned ministries said they will continue to ask for higher limits on gifts and entertainment.

BY SER MYO-JA [ser.myoja@joongang.co.kr]


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