Constitutional Court Rules "Special Act" Constitutional for Enhanced Punishment Even for Promising Bribes by Financial Company Employees

On December 27 last year, Yoon Nam-seok, Chief Justice of the Constitutional Court, and the justices were waiting for the start of the constitutional review ruling on the unconstitutionality confirmation constitutional complaint regarding the 'Korea-Japan Comfort Women Issue Agreement Announcement' at the Constitutional Court in Jongno-gu, Seoul. Photo by Kang Jin-hyung

[Asia Economy Reporter Choi Seok-jin] The Constitutional Court has ruled that a special law provision, which considers financial company employees as public officials for the application of bribery charges and imposes aggravated punishment solely based on the ‘promise’ of receiving money or valuables above a certain amount, is constitutional.

Among the nine constitutional court justices, a majority (five) expressed opinions that the provision was unconstitutional, but the number did not reach the required quorum of six for an unconstitutional ruling, resulting in a decision of constitutionality.

On the 6th, the Constitutional Court announced that in the constitutional review of the part concerning the ‘promise’ in Article 5, Paragraph 4, Subparagraph 2 of the Act on the Aggravated Punishment of Specific Crimes, which applies the bribery provisions for public officials to financial company employees and imposes aggravated punishment when receiving, demanding, or promising money or valuables worth 30 million won or more, the court decided constitutionality with a vote of 4 (constitutional) to 5 (unconstitutional).

The court stated, “This legal provision complies with the principle of proportionality between responsibility and punishment, maintains balance within the penal system, and does not violate the principle of equality; therefore, it does not contravene the Constitution.”

First, regarding the claim that the provision excessively infringes on judges’ sentencing discretion, the court cited past precedents and stated, “Ensuring transparency and fairness in the execution of duties by financial institution executives and employees is a very important public interest, and it is reasonable to impose aggravated punishment on acts such as accepting bribes related to their duties at the same level as bribery by public officials.”

It further emphasized, “The legislature has made a legislative decision to prevent probation sentences unless there are legal mitigating circumstances by evaluating the severity and blameworthiness of financial institution executives and employees receiving money or valuables highly. This cannot be considered an excessive restriction on judges’ sentencing discretion.”

Regarding the argument that imposing aggravated punishment solely based on a ‘promise’ is excessive, the court explained, “The protected legal interest of this provision is the integrity and non-bribability of financial company executives and employees. Therefore, the act of ‘promising’ money or valuables by financial company executives and employees cannot always be considered less illegal or less responsible than the actual ‘receipt’ of money or valuables.”

On the other hand, five justices?Yoo Nam-seok, Lee Sun-ae, Lee Seok-tae, Lee Young-jin, and Moon Hyung-bae?dissented, stating, “This legal provision violates the principle of proportionality between responsibility and punishment, loses balance within the penal system, and violates the principle of equality; therefore, it is unconstitutional.”

These justices pointed out, “Raising the statutory minimum sentence uniformly to imprisonment of seven years or more based solely on the promised amount is excessively harsh and severely restricts judges’ sentencing discretion. This violates the principle of proportionality between responsibility and punishment.”

They added, “It is difficult to require financial company executives and employees to maintain the same level of integrity or non-bribability as public officials. Therefore, punishing the promise of money or valuables by financial company executives and employees is excessive, especially when imposing aggravated punishment equivalent to that for public officials. Treating the promise of money or valuables by private financial company executives and employees the same as bribery by public officials excessively increases the severity of punishment compared to bribery by other private individuals, losing balance in the penal system and violating the principle of equality.”

A, a branch manager of a certain credit union, was prosecuted after it was discovered that he had entered into a sales contract to sell land worth 58.4 million won at market price, which he owned, to B for 138 million won on the condition of lending 1.8 billion won to B, thereby promising to receive a benefit worth 79.6 million won.

The court handling A’s trial requested the Constitutional Court to review the constitutionality of the provision ex officio, arguing that imposing aggravated punishment based solely on the ‘promise’ amount violates the Constitution.

Article 2 of the Act on the Aggravated Punishment of Specific Crimes (Aggravated Punishment for Bribery) stipulates that for bribery amounts of 30 million won or more but less than 50 million won, the punishment is imprisonment for five years or more; for amounts of 50 million won or more but less than 100 million won, imprisonment for seven years or more; and for amounts of 100 million won or more, life imprisonment or imprisonment for ten years or more.

Article 4 of the same law (Expansion of Subjects to Whom Bribery Charges Apply) considers executives of financial institutions and other organizations designated by presidential decree as public officials for the application of bribery charges under the Criminal Act.

This content was produced with the assistance of AI translation services.