Compare the anti-corruption laws between South Korea and Vietnam - The regulationson bribery and accepting bribes | Bài báo cáo học phần Comparative Law | Đại học Luật Thành phố Hồ Chí Minh

Ho Chi Minh City University of Law COMPARATIVE LAW
GV: thầy NGÔ KIM HOÀNG NGUYÊN Class: CLCQTL44B Group 3 Members: Full name student ID 1 VÕ CHÍ CÔNG 1953401020026 2 TRẦN LINH ĐAN 1953401020030 3 DƯƠNG QUANG LONG 1953401020108 4
NGUYỄN NGỌC ÁNH MINH 1953401020117 COMPARATIVE LAW
Topic: Compare the anti-corruption laws between South Korea and Vietnam - The regulations
on bribery and accepting bribes
In the context of an increasingly connected world, understanding of international law is
increasingly emphasized. Because of that, the attraction of the legal industry never cools down, research
surrounding legal issues between the two countries has also received attention in recent times. Let's
learn about South Korea's laws on preventing corruption. I.
South Korea Legislative System
The South Korea legislative system consists of the Constitution as the paramount law, Acts for
realizing the constitutional values, and administrative legislation including Presidential Decrees,
Ordinances of the Prime Minister, Ordinances of the Ministries and so forth for effectively enforcing
the Acts. Since South Korea statutes form a specified hierarchy, subordinate statutes enacted under
powers delegated by Acts or for enforcing Acts shall not be in contradiction to such Acts.
When designing the contemporary South Korea legal system (especially after 1987), South
Korea lawmakers share a common perception with the widely accepted view in industrialized countries
that “ Rule of law is an essential element of economic development. According to this principle, law
has the role of determining the limits of state power, ensuring judicial independence and protecting
human rights. This principle also requires transparency and accountability in the actions of public
agencies, the accountability of the state, all state agencies are subject to judicial jurisdiction, and
prohibits regulations on the effectiveness of public agencies. retroactivity of punitive regulations and
ensuring proportionality in state behavior with the goals to be achieved. The rule of law plays a role in
promoting political, economic and social stability, through which investors and businesses can plan
their business and investment in a convenient and effective way. long-term. a. Categories of Statutes Constitution
The Constitution, as the paramount law, stipulates fundamental matters pertaining to the rights
and duties of the people, structures of the Government, economic order, management of elections, etc.
The Constitution serves as the standard and legal basis for enacting and amending all the subordinate
statutes of the Republic of South Korea.
If an Act, Presidential Decree or any other statute is deemed in violation of the Constitution,
the Constitutional Court makes a decision on unconstitutionality of the relevant statute by referring to
the provisions and preamble of the Constitution and interpreting the basic constitutional notions. Acts
Acts are statutory instruments enacted by the National Assembly that is the basis for the
rinciples of legality such as the requirements for acquiring South Korea nationality, expropriation and
indemnity of property rights, the establishment of Ministries, the categories of local governments, etc.
The right or freedom of the people may be restricted by Acts only when it is deemed ecessary
for the purpose of ensuring national security, public order or public welfare; even when restricting any
right or freedom of the people, the essential elements will be protected.
Emergency executive orders and emergency financial and economic executive orders are
issued by the President in the event of any national emergency; they have the effect of Acts only when
reported to and approved by the National Assembly. Treaties
Treaties mean agreements concluded in writing among nations, and generally accepted
international laws refer to international customs, the enforcement power of which is generally
recognized in the international community.
Treaties concluded and promulgated under the Constitution and generally accepted
international laws have the same effects as those of domestic laws. Orders
Orders refer to all statutory instruments enacted by administrative power. Presidential Decrees
issued by the President, the head of the Executive, consist of delegated orders and execution orders.
The jurisdiction of such orders extends over all administrative affairs of the Executive.
Ordinances of the Prime Minister are enacted with respect to matters under the jurisdiction of the
Ministry of the Interior and Safety, the Ministry of Personnel Management, the Ministry of Government
Legislation, the Ministry of Patriots and Veterans Affairs, etc. which are administrative agencies under
the direct supervision of the Prime Minister among the ministries of the Executive. Ordinances of the
Prime Minister are generally viewed to stand on par with Ordinances of the Ministries in their hierarchy. Administrative Rules
Administrative Rules are established by administrative agencies for the purpose of establishing
internal guidelines for the performance of duties or to conduct affairs.
Municipal Ordinances or Rules
As Municipal Ordinances or Rules are affiliated with autonomous local governments, local
governments enact such Ordinances or Rules. Precedent
There is an opinion that the case law is established equivalent to the law so it can be considered a source
of law, It is argued that the case law is equivalent to the source of the law on the grounds that it functions
to form the law, supplementing the shortcomings of the written law, It is argued that the ruling of the
lower court is contrary to the case law, the possibility of being canceled will be very high so the case
law can be considered a source of law because of the strong influence on the lower court in practice.
Negativism theory: It is an opinion that denies the nature of the law of the case law on the grounds that
the case law is practically mandatory for similar cases but it is also only as a result of applying the law
to a particular case and cannot treat the case law as a law.
b. Court Structure and Hierarchy of South Korea
The general court structure and hierarchy
The South Korea judicial system is based on a three-instance system, which encompasses: ● District courts ● High courts. ● The Supreme Court.
Other courts exercise specialized functions
Unlike common law states, the doctrine of stare decisis is not institutionally adopted in South
Korea's judiciary. However, a higher court's decision on a matter binds the lower court "on that
particular matter" (Article 8, Court Organization Act).
However, in practice, higher courts' decisions, especially those of the Supreme Court, are typically
followed by lower courts (unless there are reasons for the lower courts to rule otherwise).
Specialist courts for certain legal areas
The South Korea court system includes several specialized courts, including the: • Patent Court • Family Court • Administrative Court • Bankruptcy Court Appointment
The Chief Justice of the Supreme Court is appointed by the president with the consent of the
NA. The Supreme Court Justices shall be appointed by the president on the recommendation of the
Chief Justice and with the consent of the NA. Judges other than the Chief Justice and the Supreme Court
Justices shall be appointed by the Chief Justice with the consent of the Conference of Supreme Court Justices. Qualifications
Qualifications for judges which are set out under the Court Organization Act (based on the Constitution) are as follows:
The Chief Justice and Justices of the Supreme Court must be appointed from candidates who
are at least 45 and have at least 20 years' of experience; as a judge, prosecutor or an attorney/lawyer; in
legal affairs at a national agency, local government body, public organization or other corporate entities
(and who is admitted to the bar); or as an assistant or senior professor in jurisprudence at an authorized
college or university. Judges must be appointed from candidates with at least five years' of experience:
as a judge, prosecutor, or an attorney/lawyer; in legal affairs at a national agency, local government
body, public organization or other corporate entities (and who is admitted to the bar); or as an assistant
professor in jurisprudence at an authorized college or university. For a person who has been in two or
more offices provided above, the years of such services shall be added together. II. Legal issues.
Compare the regulations on bribery and accepting bribes between South Korea and Vietnam.
Anti-corruption of South Korea content
Laws Law on unjust demands and bribery (Kim young-ran Law- Law on preventing corruption and
establishing and managing anti-corruption committees and protecting civil
rights (Law on preventing and combating corruption)); Law on public
ethics Officials; Law on Public Information Disclosure; Law on Protection
of Public Interest Declarants; Special Law on Confiscation of Property
Related to Violations of Law by Public Officials. Anti-corruption agency independent agency Committee for the Protection
of National Interests, Institute of Inspection and Control indirect agency -Judicial -Ministry of administrative safety -Information disclosure committee
-Civil servant ethics committee
Anti-corruption of Vietnam content
Laws In Vietnam, many documents related to prevention and combat of corruption are in effect and
a number of other related laws, notably the Anti-
Corruption law 2018; Criminal code 2015; Law
on denunciation; Decree on asset and income
transparency; Decision on promulgation of
Regulations on giving gifts, receiving gifts and
returning gifts from agencies, organizations, units
using state budget and from officials, civil servants, public employees...
Anti-corruption agency Central Steering Committee on anti-corruption and negativity; Party
inspection agencies, inspectors, auditors, police,
procuracy, courts, judgment enforcement, and
judicial agencies in the military.
Police Department investigating corruption,
economic and smuggling crimes (C03), Ministry
of Public Security; Anti-Corruption Department,
Government Inspectorate; The Department of
Prosecution and Procuracy for Investigation of
Corruption Cases and Positions, and the Supreme
Procuracy are specialized anticorruption units.
Vietnam’s regulations:
Article 3 of the Law on Anti-corruption Law 2018 stipulates that giving and receiving bribes is a crime of corruption.
Vietnam's criminal code 2015 details the crime of bribery: anyone who takes advantage of position or
power, directly or through intermediaries, receives or will receive any material or non-material benefits
for themselves. that person or to another person or organization to do or not do something for the benefit
or at the request of the briber (article 354). Penalties range from 2 years in prison to death depending
on the severity of the crime. The value of assets to be criminally handled is from 2,000,000 VND or
less than 2,000,000 VND but has been disciplined for this act but still violates or has been convicted of
one of the crimes specified in Clause 1 of this Article. Section 1, Chapter XXIII of this Code, has not
been cleared of criminal records but is still violated. Acts of accepting bribes with a property value of
less than 2,000,000 VND will be subject to administrative discipline depending on the severity of the violation.
“Article 364. Giving bribes” of the Criminal code 2015:
Any person who directly or through an intermediary gives or promises to give any of the
following benefits to an office holder or another person or organization in order to influence him/her to
perform or not to perform certain tasks in the interests of or at the request of the bribe giver shall be
subject to a fine of from 20,000,000 VND to 200,000,000 VND, non-custodial reform for up to 03 years
or imprisonment from 06 months to 03 years: Money, assets, other material benefits worth from
2,000,000 VND to under 100,000,000 VND; Intangible benefits. If the level of violation is higher, the
penalty can be up to 20 years in prison.
South Korea’s regulations:
Kim young-ran Law regulates the acts of giving and receiving bribes without a connection
between the bribe receipt and the public official's work; The provisions of this law do not allow public
employees (including husbands/wives) to receive items with a value exceeding 3,000,000 won (about
3,000 USD) within 1 year; or exceeding 1,000,000 won for 1 receipt (about 1,000 USD) from another
person without any connection to the job you are undertaking; especially receiving items of value to a
certain extent from parties related to the job they are undertaking; or ask or promise something.
Exceptions are that they are allowed to receive money for family events (under 100,000 won, about 100
USD), gifts (under 50,000 won, about 50 USD), and food gifts (under 30,000 won, about 30 USD). )
(Article 8). If they violate these provisions, they will be sentenced to less than 3 years in prison or have
to pay a fine of up to 2 to 5 times the amount they received and the fine amount is less than 30,000,000
won (about 30,000 USD). If a civil servant receives a higher remuneration than the prescribed
remuneration for outside lectures, the fine shall not exceed 5 million won.
This law also stipulates penalties for individuals who commit bribery and illegal requests to
public employees. If an individual makes an illegal request directly to a civil servant, it will not be
handled; If that individual makes an illegal request to a civil servant through a third party, he or she will
be fined no more than 10 million won, or through a third party who is another civil servant, a fine of no
more than 20 million won will be imposed.
For acts of giving and receiving bribes that have a link between giving bribes and the work of
civil servants will violate the provisions of the Code criminal 2016. If a government official or an
arbitrator receives an unrighteous request or promises to receive a bribe in connection with its duties,
will be imprisoned for no more than five years or suspended for a degree for no more than ten years; a
civil servant or an arbitrator requires or promises a bribe to give a third party the acceptance of an unfair
request regarding the assignment his case will be imprisoned for no more than five years or suspended
for a degree for no more than ten years... Bribery: Those who promise, deliver or express their will to
give bribes will be sentenced to no more than 5 years in prison or a fine of not more than twenty million
Both Vietnam and South Korea stipulate giving and taking bribes as corrupt acts, depending on
the extent of the violation that can be administratively handled, fine or criminal handling (prisonment).
For Vietnam the level for criminal handling is 2,000,000 VND (about 90 USD)/1 time, South Korea
regulates 1,000,000 won ($ 1,000)/1 time.
Differences in the regulation of the two countries are the subject of bribery and the purpose of
receiving bribes: South Korea stipulates that the subject of bribery is a civil servant or relative (spouse),
Vietnam only stipulates that the subject is a civil servant or through an intermediary. For the purpose of
accepting bribes: South Korea stipulates that no consideration should be given to the purpose of
receiving gifts, if exceeding the prescribed level would be an offense; meanwhile, Vietnam regulates
non-factor bribery “ doing or not doing anything for the benefit or at the request of others... ”
The 2016 Criminal Code of South Korea stipulates that charges for giving and receiving bribes
are based on the relationship between giving bribes and the work of civil servants without regard to the
value of the gift, if it proves this relationship, the act of giving and receiving bribes will be dealt with
in accordance with the Criminal Law; Vietnam regulates gift values from 2,000,000d or less than
2,000,000 ₫ in some cases will be subject to criminal processing.
Regarding bribery and nefarious figs: Vietnamese regulations will criminally handle bribery
people depending on the extent of the violation; South Korea does not handle direct and unjust people,
thanks and nefarious people will be subject to administrative penalties only when adopting a third party
The regulations for giving and receiving South Korea gifts are controversial and worried about
civil servants because the rules are very strict. Before, The identification of bribery should determine
the relationship between giving gifts and the advantages that civil servants give to givers. Unnecessary,
identifying and handling violations becomes easier. These rules change the habits of South Koreas: on
New Year, weddings ... People have a tradition of giving gifts and money...to show gratitude, respect,
help or simply affection for civil servants but currently are not allowed to use expensive gifts to show
affection. This strict regulation also has a negative impact on South Korea's economy. The need to give
gifts on the occasion of the Ceremony is huge; civil servants account for a small part of that need. The
decline in customers will make it difficult for manufacturers and traders. On the other hand, the amount
of money for meals also negatively affects the dining business, and can impact even farmers who
provide food because the need to entertain civil servants is no more. In addition to the affected food,
manufacturing and consumer goods businesses, the entertainment and entertainment businesses are also
reduced by customers such as: golf, tennis, travel, wedding ask...
Vietnam's bribery regulations also have some inadequacies when applied in the entity: in reality,
bribery recipients often do not reveal their identities and do not directly receive them but allow relatives
to receive replace them and those properties will not be named of civil servants it will therefore be
difficult to identify violations; Determining the relationship between taking bribes and the work of civil
servants will cause difficulties and extend the processing.
Suggestions for Vietnam in developing and implementing laws on anti-corruption.
- A research to amend the provisions on bribery behavior in the 2015 Criminal Code. Accordingly it
isnecessary to specify only need to receive bribes (including meals, gifts…) is an offense without
having to consider the purpose of receiving a bribe of “ doing or not doing anything for the benefit or
at the request of others ”. This provision also needs to add scope to the time of application, specifically
consider both for bribery committed after the party giving the bribe receives benefits from the recipient.
- Additional research on bribes who are relatives of civil servants. Vietnam's bribery regulations
alsohave some inadequacies when applied in the fact that bribery recipients often do not reveal their
identities and not directly received but for relatives to receive, such assets will not be in the name of
the civil servant so it will be difficult to identify the violation; determining the relationship between
taking bribes and the work of civil servants will be difficult and extend the processing, so, additional
research on the subject of bribery is the relative of the civil servant (spouse, husband, children
(including adopted children), father, mother (father, adoptive mother), brothers, sisters).
- Additional research on regulations on personal property declaration. Accordingly,
additionalprovisions for the declaration of relatives of civil servants (spouses, children (including
adopted children), parents (including fathers, adoptive mother), brother, and sibling) to control civil
servants and house property, avoid taking advantage of the relationship to receive unrighteous bribery.
Property declarations in Vietnam are often considered to be formal, and in the 10 years of
implementation of the Anti-corruption Law only discovered, disciplinary action 17 cases of dishonest property declarations.
- Legalization of regulations on public disclosure of administrative information. The current,Vietnam
does not specify which types of administrative information are not made public, so civil servants will
often use confidentiality determination to refuse to provide information administration for citizens and
businesses. Therefore, it is necessary to study the amendment of the list of administrative information
that is not made public for people to clearly grasp and access clear administrative information, at the
same time supervise civil servants in the process of providing administrative information as required.
- The study that issued the unified regulation of a single focal point in bidding is the National Bidding
Network System. In order to increase openness, and transparency, reduce the loss of funding to the State
in investment, public procurement, Vietnam can research and issue regulations that require all public
sector agencies, The private sector only bidding through a single focal point is the National Bidding
Network System, and at the same time, The study applies extensive international bidding to select
quality contractors, prestige as the way of doing South Korea's Investment and Public Procurement
Service is underway. For agencies that still organize bidding in the traditional manner, a processing mechanism is needed.
- Revised research, supplementing regulations on the protection of accusers. Vietnam can study
SouthKorea regulations on the protection of whistleblowers, whereby a study may issue a regulation
that focuses on protecting whistleblowers from discriminatory acts, specific provisions on the content
of measures to protect whistleblowers from discrimination in living, work and exercise legal rights and interests. References
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● Thanh tra Chính phủ 2011, Tài liệu bồi dưỡng về phòng chống tham nhũng, Nhà xuất bản
chính trị quốc gia - sự thật, Hà Nội.
● Integrity System to Promote anti-corruption.
● Chêne, M., 2010, Anti-corruption and police reform, Anti-Corruption Resource Center,
Transparency International, No.247
● 가상준., 2006, 동아시아 국가의 부패문제와 거버넌스, 신아세아 제 13 권 4 호
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