1. Is your country a member of the OECD Anti-Bribery Convention?
Yes.
2. Is your country a member of any other bilateral or multilateral conventions on anti-corruption?
Yes, South Korea is a member of the United Nations Convention against Corruption.
3. Are there local anti-corruption laws in your country focusing on corporations, not individuals? If yes, what sanctions can be imposed?
No. Generally, criminal liability affects individuals, not companies. Companies can be vicariously liable for the behavior of their employees, intermediaries, or agents pursuant to the specific joint penal provisions under relevant laws. Companies are typically subject to a criminal or administrative fine up to the same amount given to the individual wrongdoer.
4. Can companies be held liable for acts of corruption under civil or administrative law?
Yes. Companies may be subject to administrative fines or debarment under relevant laws.
5. Is corruption of individuals punishable?
Yes. The bribe giver and receiver may be criminally punishable.
6. Are facilitation payments allowed?
No. However, Combating Bribery of Foreign Public Officials in International Business Transactions Act (Foreign Bribery Act) provides that payments permitted or required under written law in the foreign official's country are exempt from being considered a bribe. Therefore, if the facilitation payment is permitted in the foreign official's country, such payment may not be punishable under the Foreign Bribery Act.
7. Is there a legal regulation/maximum limit for accepting or giving gifts, invitations, etc.?
There is no maximum limit for accepting or giving gifts and entertainment. However, under Anti-Graft Act, meals, gifts, and other hospitality up to the following values may be permissible:
(i) for food and drink, KRW 30,000 (approx. USD 23);
(ii) for gifts (excluding agricultural products or processed goods with more than 50% of agricultural content), KRW 50,000 (approx. USD 38);
(iii) gifts that are agricultural products or processed goods with more than 50% of agricultural content, KRW 100,000 (approx. USD 77), temporarily relaxed to KRW 200,000 (approx. USD 154) before and after recent Korean traditional holidays;
(iv) for funerals and festive occasions such as weddings, KRW 50,000 (approx. USD 38), except in the case of condolence flowers, up to KRW 100,000 (approx. USD 77).
8. Are bribes to foreign government officials prohibited?
Yes. Under the Foreign Bribery Act, the acts of giving, offering, or promising a bribe to a foreign public official to obtain an improper benefit in connection with international commercial transactions are prohibited.
9. Does your legislation have any extraterritorial reach?
No. South Korean anti-corruption laws generally apply to the crimes committed by Korean nationals (regardless of where the crimes occur) and/or in Korea (irrespective of the nationalities of the persons/entities who commit the crimes).
10. Is it possible to confiscate assets from the company?
Yes. Illegal company assets may be confiscated pursuant to the general confiscation requirements.
11. Does your legislation rely on deferred prosecution or non-prosecution agreements or any other type of non-trial resolution for corruption?
No. Korean law does not recognize non-trial resolutions for corruption.
12. Can a company be liable for the acts of its intermediaries or third parties?
No. Companies will not be held liable for the action of their subsidiaries in cases of bribing domestic public officials. As for bribing foreign public officials, companies may be liable for the actions of their intermediaries or third parties if the company has not exerted due care and supervision to prevent such violations.
13. Can a parent company be liable for the acts of its subsidiaries?
No. Companies will not be held liable for the action of their subsidiaries in cases of bribing domestic public officials. As for bribing foreign public officials, companies will not be liable for the actions of their subsidiaries unless the parent companies are directly involved in the criminal conduct, or the subsidiary acted as an agent or intermediary for the benefit of the parent company.
14. Are there any affirmative defenses or exceptions for those accused of corruption acts?
The Anti-Graft Act sets out certain exceptions that are not deemed to be bribes, which include:
- meals, gifts, and other hospitality up to a certain threshold for purposes of facilitating the performance of duties, social relationships, rituals, or aid;
- transportation, accommodation, and meals which are provided by the host of official events to all of its attendees provided that such event is related to the recipient's official duties;
- promotional items or souvenirs that are distributed to numerous and unspecified persons;
- gifts/hospitality that are within socially acceptable boundaries.
In addition to these general rules, specific business sector regulations allow exceptions to the prohibition of giving or accepting benefits under certain conditions. The regulated business sectors include pharmaceutical and healthcare (Medical Service Act), insurance (Insurance Business Act), financial investment (Financial Investment Services and Capital Markets Act), and defense (Code of Conduct of the Acquisition Program Administration).
15. Does your jurisdiction require domestic entities to implement anti-corruption internal programs?
Yes. The Korean Commercial Code requires certain listed companies to adopt a legal compliance program. The Act on Corporate Governance of Financial Companies requires certain financial companies to adopt an internal control program. Both of these generally cover anti-corruption compliance.
16. Is having a compliance program a defense or mitigating factor, while reviewing sanctions?
Yes. The joint penal provision generally provides for an exception to the vicarious liability if the company has exercised due care and supervision to prevent the commission of an offense. A compliance program is considered in determining the company's due care and supervision.
17. Could the cooperation with the authorities or an internal investigation be a defense or mitigating factor?
Yes. The authorities may consider cooperation or an internal investigation as a mitigating factor in its enforcement action.
18. Is there any publicly available guideline issued by the authorities in charge of enforcing anti-corruption laws? For example, manuals on compliance programs, leniency agreements, etc. If so, please provide the link.
There are none.
Contributor
Bae, Kim & Lee LLC
Jeena KIM, jeena.kim@bkl.co.kr