“Self-Investigation” to be Prohibited Where a Public Official or Family Members are Involved

ACRC prepared a detailed standard for prevention of conflicts of interest related to duties of public officials responsible for ‘investigation, audit, and inspection’

(Aug. 9, 2023, ACRC)

Where the duty of a public official is related to investigation, audit and inspection, and the public official or his/her family members are involved in a reported or accused case of which he/she is in charge, he/she should report the fact that he/she has private interests in the case to the head of his/her institution, and apply for recusal in the case under the Act on Prevention of Conflict of Interest Related to Duties of Public Servants (hereafter, the Conflict of Interest Act).

The Anti-Corruption and Civil Rights Commission (ACRC, Chairperson Kim Hong-Il) has drawn up a guideline to prevent conflicts of interest related to duties of public servants from arising through self-investigation, audit or inspection as per their obligation to report privately interested parties and apply for recusal in the case which may give rise to conflicts of interest. The ACRC has distributed the guideline to more than 17,000 public institutions in the country.

This guideline has been produced based on opinions collected during the discussions in May and July attended by conflict-of-interest officers from 12 related organizations who are in charge of the matters of investigation, audit and inspection.

Article 5 of the Conflict of Interest Act stipulates that where a public official becomes aware that his/her duty-related person is his/her privately interested person who are advantaged or disadvantaged directly by the performance of his/der duties, the public official should file a report on such fact with the head of the affiliated institution and apply for recusal of himself/herself.

Further, a public official can apply for recusal if he/she is concerned about impartial and disinterested performance of duties due to his/her personal relationships even if he/she is not obliged to report or recuse.

The major contents of the guideline are as follows: a public official is prohibited from being in charge of instigating into a case where the public official himself/herself or his/her privately interested person, including a member of his/her family, is a person who reported, accused or charged, or a person who was reported, accused or charged related to the case.

In particular, in case where a minister of a central government agency, or a member of his/her family, is investigated by an external institution and receives a report or commands instructions on the investigation, the minister becomes obliged to file a report on such fact and recuse himself/herself as it means that he/she is investigating a privately interested person.

In other words, where the minister’s privately interested person is investigated by the external institution, the minister should file a report on the fact that he has a private interest in the investigation with the conflict-of-interest prevention officer of the central government agency and apply for recusal as he has an authority to direct and supervise the investigation carried out the external institution, unless it is obvious that the minister is not a duty-related person.

If a public official is put in charge of the duty of investigating a person whom the public official has personally accused or charged, he/she should apply for recusal from the duty, since he/she can impede the impartiality of the investigation and gain tangible or intangible benefits by influencing the scope or intensity of the investigation.

On the other hand, if a person who is being investigated by a public official files a complaint, accusation or petition against the public official due to dissatisfaction with the investigation, the public official does not have an obligation to report or recuse as he/she is not a duty-related person who is directly advantaged or disadvantaged by investigating the case.

What the recusal of a public official from a duty means that the public official would not have a hand in matters which can affect the direction of decisions and the contents, etc. in relation to the duty.

Therefore, a public official should not be involved in the duty from which he/she recused, including through receiving a report or commanding instructions on the duty, and should completely avoid any matters ancillary to it to prevent unnecessary misunderstandings.

This obligation of recusal continues with the official until the case is closed with a final decision made in relation to the duty, and the official cannot withdraw his/her reporting and application for recusal after the head of the affiliated institution takes a measure.

The ACRC Vice-Chairperson and Secretary General Jeong Seung-yoon said, “The Conflict of Interest Act is an effective tool for corruption control to prohibit public officials from seeking private interests in a conflict-of-interest situation that can easily be led to corrupt practices,” adding that “the ACRC will do its best to establish a clear standard for the statutory interpretation and lay a foundation for the effective institutional operation, so that 2 million public officials subject to the Conflict of Interest Act would not have difficulties in understanding and complying with obligations under the Act.”