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Rice-Cake Expenses in Korea and the Foreign Corrupt Practices Act

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Rice-Cake Expenses in Korea and the Foreign Corrupt Practices Act Washington International Law Journal Volume 6 Number 3 7-1-1997 Cultural Differences in the Crusade Against International Bribery: Rice-Cake Expenses in Korea and the Foreign Corrupt Practices Act Joongi Kim Jong Bum Kim Follow this and additional works at: https://digitalcommons.law.uw.edu/wilj Part of the Comparative and Foreign Law Commons, and the International Trade Law Commons Recommended Citation Joongi Kim & Jong B. Kim, Cultural Differences in the Crusade Against International Bribery: Rice-Cake Expenses in Korea and the Foreign Corrupt Practices Act, 6 Pac. Rim L & Pol'y J. 549 (1997). Available at: https://digitalcommons.law.uw.edu/wilj/vol6/iss3/3 This Article is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington International Law Journal by an authorized editor of UW Law Digital Commons. For more information, please contact [email protected]. Copyright C 1997 Pacific Rim Law & Policy Association CULTURAL DIFFERENCES IN THE CRUSADE AGAINST INTERNATIONAL BRIBERY: RICE-CAKE EXPENSES IN KOREA AND THE FOREIGN CORRUPT PRACTICES ACT Joongi Kimt Jong Bum Kim: "Even if an object sent as a gift is very small, once one becomes sentimentally indebted then one's actions will already be swayed by one's personal feelings"--Chong Yakyong, Korean Confucian Scholar (1762-1836) "They say the gods themselves are moved by gifts"-Euripides Abstract: The expanding global movement against overseas bribery has emerged as one of the foremost issues in international trade. This paper explores the complex issues surrounding this multilateral anti-bribery movement, particularly focusing on one of the central concerns at the heart of this debate: what type of different cultural perspectives and legal traditions exists regarding questionable payments and whether they need to be respected. This study approaches this subject by discussing how the Korean legal system distinguishes between permissible gifts such as "rice-cake expenses" and illicit payments. In the process, the new legal interpretations that were developed by the Korean judiciary in the sensational slush fund trials of former presidents Chun Doo-Hwan and Rob Tae- Woo are reviewed. In conclusion, this paper suggests that an international consensus against foreign bribery might be able to better harmonize concerns such as cultural differences by incorporating certain elements of the U.S. Foreign Corrupt Practices Act. I. INTRODUCTION II. THE GROWING INTERNATIONAL MOVEMENT TO FIGHT OVERSEAS BRIBERY A. Recent Undertakings by the OAS, OECD and EU B. Problems In Creating an International Consensus and the Need for GreaterInternational Anti-Bribery Efforts Assistant Professor of Law, College of Business Administration, Hongik University, Seoul, Korea; B.A. Columbia College; M.A. Yonsei University; J.D. Georgetown University Law Center. I would like to dedicate this article to the memory of my grandfather Kim Bongjin. I would also like to thank Ha T'aehoon, Yi Sungduk, Park Wonsoon, Chang Injong, and Choi Sunghee for their help and comments. Research Fellow, Korea Institute for International Economic Policy; B.A. Columbia College; M.Phil. University of Oxford; Ph.D. University of California, Riverside. I would like to thank Kim Kwanho for encouraging me to pursue this topic. I would also like to thank KIEP for supporting this research. PACIFIC RIM LAW & POLICY ASSOCIATION VOL 6. No. 3 III. CULTURAL DIFFERENCES AND THE EXAMPLE OF RICE-CAKE EXPENSES IN KOREA A. Origins of "Ttokkap" (Rice-cake expenses) B. Bribery Under Korean Law C. The Social Courtesy Exception D. Ttokkap and CurrentLegal Trends IV. THE FOREIGN CORRUPT PRACTICES ACT A. The History of The FCPA B. Anti-Bribery Provisions C. Affirmative Defenses and PermissiblePayments 1. The Lawfulness Affirmative Defense 2. The Nominal Payment Affirmative Defense 3. The Reasonable and Bona Fide Expenditures Affirmative Defense and the Routine Governmental Actions Exception V. CONCLUSION: INCORPORATING CULTURAL DIFFERENCES INTO AN INTERNATIONAL ANTI-BRIBERY AGREEMENT I. INTRODUCTION Throughout the course of history every country in the world in varying degrees has been beset with the graft or corruption of their public officials. Bribery, in particular, endures as one of the most interminable forms of corruption.' Nations try their utmost to prohibit bribery and to punish contributors and participants, yet the practice persists and the campaign against it remains an unending endeavor.' The rapid expansion of transnational trade and the growth of multinational corporations has now transformed the traditional dimensions of bribery and has globalized the problem. The distribution of illicit payments in cross-border commerce has now become an international concern affecting all countries.' See generally Michael Hirsh, Don Quixote at the Bank, NEWSWEEK, Oct. 14, 1996, at 2 (on efforts against corruption by organizations such as the World Bank); Robert Keatley, New Agency Girds to Fight Corruption, Widespread in International Contracts, WALL ST. J., May 21, 1993, at A6 (discussing founding of Transparency International, an organization modeled after Amnesty International that is devoted to fighting corruption); Reginald Dale, World Turns Against Corruption, INT'L HERALD TRIB., Oct. 18, 1996, at 15; Cleaning Up Latin America, ECONOMIST, Apr. 6, 1996, at 41. 2 Judson J. Wambold, Note, Prohibiting Foreign Bribes: Criminal Sanctions for Corporate Payments Abroad, 10 CORNELL INT'L L.J. 231, 235 n.26 (1977) (providing a survey on bribery laws of major countries). 3 Amy Borrus et al., A World of Greased Palms, Bus. WK., Nov. 6, 1995, at 36; Stephen Handelman, Corruption Inc., TORONTO STAR, July 13, 1996, at 1. See Christopher Hall, Comment, The Foreign Corrupt Practices Act: A Competitive Disadvantage,But For How Long?, 2 TuL. J.INT'L & JULY 1997 RICE CAKE EXPENSES IN KOREA Led by the United States, the OECD 4 and the Organization of the American States ("OAS"),5 many countries and international bodies have determined that in addition to enforcement against domestic corruption, new laws need to be enacted to prevent local businesses operating overseas from bribing foreign officials. The United States singlehandedly pioneered such legislation when it enacted the Foreign Corrupt Practices Act ("FCPA") in 1977.6 In 1994, after several years of careful consideration, the member countries of the OECD followed suit and adopted a recommendation against the practice of international bribery. 7 Most recently, the OAS, composed of several countries considered notorious for their corruption, made an extraordinary breakthrough when they joined to sign one of the toughest international anticorruption agreements to date. 8 These various endeavors represent a growing international consensus that illicit payments should be eliminated from transnational business. Furthermore these efforts will act as a benchmark for future international undertakings against the practice of overseas bribery. Noble intentions aside, these international efforts, however, are encountering increasing resistance from many countries. One of the strongest contentions comes from countries that argue that an international consensus against overseas bribery, particularly one that respects all cultural differences, would be impossible to achieve because countries inherit COMp. L. 289, 291-292, n.7 (1994) (listing of articles documenting corruption in various countries). See generally Editorial, The Greased Palm Issue, WASH. POST, July 1, 1996, at A14. 4 Convention on the Organization for Economic Cooperation and Development, Dec. 14, 1960, 12 U.S.T. 1728, 888 U.N.T.S. 179 ("OECD Convention"). On December 12, 1996, the Republic of Korea became the 29th member country to join the OECD. South Korea Joins the OECD, ASIAN WALL ST. J., Dec. 13, 1996, at 25; Korea's OECD Membership Takes Effect, Dec. 13, 1996, at 1. 5 Charter ofthe Organization of American States, Apr. 30, 1948,2 U.S.T. 2394, T.I.A.S. No. 2361, amended by the Protocol of Buenos Aires, Feb. 27, 1967, 21 U.S.T. 607, T.I.A.S. No. 6847. 6 Foreign Corrupt Practices Act of 1977, Pub. L. No. 95-213, 91 Stat. 1494 (codified as amended at 15 U.S.C. §§ 78m(b), (d)(1), (g)-(h); 78dd-1, 78dd-2, 78ff(a), (c) (West 1997)). See generally William Jennings & Craig A. Gillen, Complying with the Foreign Corrupt Practices Act, NAT'L L.J., Apr. 17, 1995, at CIO. Recommendation of the Council on Bribery in International Business Transactions, OECD, 829th Sess. (May 27, 1994), available at <http://www.oecd.org/dat/cmis/bribrecm.htm> [hereinafter 1994 OECD Recommendation]. See generally David Buchan & George Graham, OECD Members Agree Action To Curb Bribery of Foreign Officials, FtN. TIMES, Apr. 30, 1994, at 2. ' Inter-American Convention Against Corruption, OAS, Mar. 29, 1996, 35 I.L.M. 724 (1996) [hereinafter OAS Convention]; Organization ofAmerican States: United States Signs OAS Convention on Preventing Bribery, Corruption, Int'l Trade Daily (BNA), at d4 (June 17, 1996). See generally Bruce Zagaris, Constructing a Hemispheric Initiative Against Transnational Crime, 19 FORDHAM INT'L L.J. 1888 (1996). PACIFIC RIM LAW & POLICY ASSOCIATION VOL 6. No. 3 differing legal traditions and customs.9 While agreeing that egregious forms of influence buying should be prohibited, these objecting countries similarly decry that forcing them to enact such laws represents no more than extraterritorial bullying that infringes upon their national sovereignty.'0 In particular, demands
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