공무원의 유착비리 해결을 위한 뇌물개념의 패러다임 변화 -청탁금지법 제8조와 뇌물죄의 비교를 중심으로- = Changing the Paradigm of Bribery to Resolve the Issue of Public Adherence to Private Interest

다국어 초록 (Multilingual Abstract)

This thesis firstly proves that the existing legal system cannot be effectively defended from Public adherence to private interest. Public Services Ethics Act, State Public Officials Act, Anti-Corruption Act, Political Funds Act, Public Official Election Act revealed the limitations as those laws have no relevancy to Public adherence to private interest or are limited in their coverage. Even if there were some provisions to control Public adherence to private interest partially, other problems such as lak of penalty provision or contradiction to the principle of balanced liability. Especially, bribery recognized as general enactment onpunishment for Public adherence to private interest was not capable of positive and fundamental punishment on Public adherence to private interest due to the compositional limitations in relevancy to duty. 43) The article 8 of The Improper Solicitation and Graft Act was devised to severthe relevancy to duty from bribery to prevent public adherence to private interest positively. However, the composition requirement of the article could not verify any illegality. This is because the article understood that when relevancy to duty is excluded, Quid Pro Quo was considered as excluded altogether. However, this study verifies that relevancy to duty and Quid Pro Quo can bedifferentiated, and relevancy to duty is a factor of behavior, while Quid Pro Quo is the factor on object of behavior (bribery), thereby arguing that bribe concept shall be more positively used than the money or valuables stipulated at Article 8. This is a change attempted to the existing paradigm where both relevancy to duty and Quid Pro Quo were deemed as the composing factor for bribery. Furthermore, this study proposed the standard for differentiating Quid Pro Quo from gifts, for the purpose of materializing Quid Pro Quo as the pre-condition fornew composition factor. and propose to impose proper liability to both of the giving party and the receiving party. This approach is applicable not only to Article 8, but also all other laws sanctioning, based on giving monies and valuables, and would become the minimum condition for the Criminal Act to be applied positively on Public adherence to private interest.

참고문헌 (Reference)

1 오영근, "형법각론 제3판" 박영사 2014

2 임웅, "형법각론" 법문사 2015

3 이재상, "형법각론" 박영사 2014

4 "유착"

5 김성규, "위험사회에서의 형법의 과제와 기능 - 독일에서의 논의와 그 시사점 -" 법학연구소 15 (15): 179-204, 2012

6 부경복, "부패전쟁" 프리스마 2011

7 김성천, "부패범죄의 원인과 대책" 법학연구원 31 (31): 277-294, 2007

8 최석윤, "부패범죄의 원인과 대책" 한국비교형사법학회 13 (13): 551-567, 2011

9 김재광, "부패방지 관련법제의 체계 및 평가" 한국공법학회 40 (40): 1-31, 2012

10 이근우, "뇌물죄의 몇가지 쟁점" 조선대학교 사회과학연구원 5 (5): 2012

11 김창군, "뇌물죄에 관한 연구-형법 제129조의 구성요건표지들에 대한 재해석-" 제주판례연구회 2 : 1999

12 김홍준, "뇌물의 의미 -판례를 중심으로-" 한국법학원 (110) : 121-179, 2009

13 서보학, "공직자 부정부패에 대한 형사법적 대응방안" 한국형사정책학회 (11) : 1999

14 김영종, "공공기관의 자율적인 부패통제 방안" 한국부패학회 10 (10): 1-20, 2005