청탁금지법의 적용 대상에 관한 고찰

Abstract

The fact that the scope of the application of the 「Act on the Prohibition of Improper Solicitation and Grafting and Acceptance of Bribery, etc. (hereinafter referred to as the 'Prohibition of Solicitation and Graft Act')」 has been extended to private schools and the media is the biggest trigger for the increase in the controversy over the constitutionality of the Improper Solicitation and Graft Act. .
 Because the original government draft of the Anti-Graft Act was enacted to correct the absurdity of the public service society, it was applied to ‘public officials who are subject to the National Public Officials Act and the Local Public Officials Act, the heads of public service-related organizations and public institutions, and their executives and employees’. However, in the legislative process, private schools (faculty staff) and media organizations (journalists) were included in the application of the Anti-Graft Act on the grounds that they were public, and the scope of the application was expanded, resulting in greatly restricting the private sector. In addition, the fact that the private sector, which can be said to have a greater public nature than private schools or media institutions, was excluded from the application of the Solicitation and Graft Act cannot but raise an issue in terms of equity.
 It should be clarified that there are reasonable reasons for treating teachers and journalists of private schools subject to the Anti-Graft Act as public officials, and whether there are reasonable reasons to discriminate them from other private sectors. Imposing a punishment similar to that of a public official on a person in the private realm is against the principle of proportionality between responsibility and punishment. Therefore, the current anti-graft law needs to define the scope of application more justly and precisely.
 In light of the legislative purpose of the Anti-Graft Act, which is to “enhance transparency in the public service society and ensure fairness in the performance of public office,” it is reasonable to limit the scope of the applicable subjects to public officials and public institutions, and the Constitutional Court on the Expansion of the Applicable Subjects of the Anti-Graft Act In light of the opposing opinion of the decision, the constitutionality of the law may be raised again in the future, and if the problem of expanding the scope of application of the Anti-Graft Act is not improved, the normative power and effectiveness of the Anti-Graft Act will decrease. should be promoted promptly.