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Anyone who disadvantages against corruption whistleblowers to be more severely punished...

Date
08-11-2019
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Anyone who disadvantages against corruption whistleblowers to be more severely punished by a maximum of three years in prison (or a fine of up to 30 M), etc.

The revised Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission to be effective from Oct. 17... protection of corruption whistleblowers to be enhanced to the level of protection of public interest whistleblowers

 

October 16, 2019

Anti-Corruption and Civil Rights Commission

The Republic of Korea

From now on, anyone who takes disadvantageous measures such as dismissal or release from office, etc. against corruption whistleblowers will face up to three years in prison or a fine of not more than 30 million won. In addition, if a person fails to comply with the ACRC’s decision to take protective measures (e.g. guarantee of public position), a charge for compelling compliance of up to 30 million won will be imposed on that person.

The Anti-Corruption and Civil Rights Commission (ACRC, Chairperson Pak Un Jong) will put the Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission (the “Act”) in force from Oct. 17, which was revised on April 16 this year to provide for stronger protection of corruption whistleblowers.

The major amendments to the Act are as follows:

The scope of corruption whistleblowers subject to protection under the Act has been expanded to include those who testify in the National Assembly/Courts or who file a charge/accusation with an investigative agency, and in the case of failure to comply with the Commission’s decision to take protection measures such as guarantee of public position, a charge for compelling compliance of up to 30 million won will be imposed.

In addition, corruption whistleblowers suffering damage due to high costs of medical treatment, moving and litigation and incurred a loss of wages by reason of his/her reporting will be provided with relief fund, while confinement in jail for not more than three years or a fine not exceeding 30 million won, which is a more severe punishment than the previously imposed administrative penalty of not more than 10 million won, will be meted out to those taking disadvantageous measures including dismissal or release from office against corruption whistleblowers.

In the Enforcement Decree of the Act, criteria for the imposition of a charge for compelling compliance and for the calculation of the amount of relief money have been newly introduced, while more concrete standards for the enhanced protection of whistleblowers have been set, including through incorporating the imposition of a fine, penalty surcharge or administrative fine for negligence into the reasons to provide compensation.

Since its enactment in 2001, there had not been any major revision with respect to the protection of whistleblowers and thus been criticized that its level of protection is weaker than that provided under the Act on the Protection of Public Interest Whistleblowers legislated later.

In response, the ACRC revised relevant provisions to secure more enhanced compliance with the Commission’s decision to take protection measures and to punish those taking disadvantageous measures against corruption whistleblowers in a stricter manner.

As the Act has been amended to provide stronger protection for corruption whistleblowers up to par with the protection provided under the Act on the Protection of Public Interest Whistleblowers, it is expected that more efficient protective measures will be taken.

Chairperson of the ACRC Pak Un Jong said, “the Commission will take this amendment as a momentum to strive to concentrate on the protection of whistleblowers. I expect to see more courageous reporting on an act of corruption committed in the public sector in the years to come.”

Ref. 1

 

Major Amendments to the Act

 

Purpose

Major Amendments

Protection of whistleblowers

To expand the scope of a person to be protected

(Pre-amendment) a person filing a report with the ACRC, an institution to which the person reported belong, or an agency in charge of supervising the institution

(Post-amendment) a person testifying in the parliament or court and bringing a charge or accusation with an investigative agency (subpara. 4 of Article 67 newly inserted)

To establish the system to promptly resolve the case where whistleblowers suffer disadvantageous measures

Partial limitation on the rights of the person reported to file a litigation not to comply with a decision of the ACRC to take protective measures, including guarantee of public position, etc. (Article 62-4 newly inserted)

- The period during which the person reported can file an administrative litigation to challenge the ACRC’s decision to take protection measures will be limited to 30 days, and the person reported will not be allowed to file an administrative appeal

Concerning a request for protection measures such as guarantee of public position, etc., recommendations/proposal for reconciliation to be rendered to the parties involved (i.e. corruption reporters and the person reported) (Article 63-2 newly inserted)

- Reconciliation protocol shall have the same effect as consent judgment under the Civil Procedure Act

To secure compliance with a decision to take measures, including guarantee of public position

In the case of failure to take measures such as guarantee of public position, etc. within the time limit after receiving a decision to take such measures from the ACRC, a charge for compelling compliance of not more than 30 M won to be imposed (Article 62-6 newly inserted)

Rewarding whistleblowers

To extend the application period for reward payment

The application period for the reward payment to be extended from within 2 yrs of the date on which it is known that legal relations regarding the recovery or increase of revenues or the reduction of costs of the public institution are established to within 3 yrs (para. 5 of Article 68)

To introduce the relief fund system for whistleblowers (costs of medical treatment, moving, lawsuit, and wage losses, etc.)

(Pre-amendment) only where requirements for the reward payment (i.e. recovery of revenues to public institutions) are fulfilled, a person may apply for the payment of the costs incurred to restore the situation back to his/her original state, including rewards.

(Post-amendment) even when requirements for the payment of rewards are not met, a person may apply for the relief fund aside from rewards (para. 3 of Article 68 newly inserted)

To expand the scope of eligibility for financial award

(Pre-amendment) those who report an act of corruption to the ACRC, and in the case of public officials, to any investigative agency and the Board of Audit and Inspection are eligible for financial award

(Post-amendment) those who report an act of corruption to public institutions are included (para. 1 of Article 68 newly inserted)

Punishment

To prohibit obstruction of or forcing cancellation of reporting, etc.

Obstruction of or forcing cancellation of reporting, etc. will be prohibited (para. 2 of Article 62 newly inserted), and anyone violating this provision will be punished (subpara. 2 of Article 90(2) newly inserted)

- confinement in jail for not more than 2 yrs or a fine of not more than 20 M won

To strengthen the level of punishment for violating the provisions of whistleblower protection

Anyone who disadvantages a whistleblower in terms of his/her public position by taking such measures as dismissal or release from office (subpara. 1 of Article 90(1))

(a fine for negligence of 10 M won → 3 yrs in prison, a fine of 30 M won)

Anyone who takes disadvantageous measures like unjust disciplinary actions or transference, discriminatory payment of bonus and unjustifiable inspection (subpara. 1 of Article 90(2))

(a fine for negligence of 10 M won → 2 yrs in prison, a fine of 20 M won)

Anyone who fails to comply with decision to take necessary protection measures, including a measure to guarantee public position of a whistleblower (subpara. 2 of Article 90(1))

(1 yr in prison, a fine of 10 M won → 3 yrs in prison, a fine of 30 M won)