By Hwang Ju-myung
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In impeaching Park Geun-hye and electing Moon Jae-in to the Blue House, Korean citizens have sent a signal to the nation ― and to the world ― that the era of business-political collusion in Korea is over. No longer will people accept the kind of influence-peddling by politicians towards business leaders that was the norm here for too long. But old habits die hard. In the immediate aftermath of the election, big businesses were quick to take out paid advertisements congratulating President Moon, and may have begun to send out feelers to people who are close to him, hoping to establish good relations with the new administration. We as a nation must be careful and vigilant, because what starts out innocently enough can end up in a sticky mess. Who can count how many Korean presidents began their terms with vows to clean up the corporate world, only to finish amidst accusations of impropriety and pocket-lining. Nevertheless, I hope that this time the pledge to clean up the political world, and to finally sever links between the Blue House and chairmen's offices, will be honored.
South Korea may have a new president now, but it isn't finished with the previous one yet, judicially speaking. At the time of writing this piece, the trial of former President Park Geun-hye for 18 charges, including bribery, abuse of power, and leaking state secrets, has just started. It is sure to hold people's attention, and may continue for much of the rest of this year.
Today I will limit my focus to discussing the bribery charges. Ms. Park stands accused of, either directly or indirectly through her friend Choi Soon-sil, receiving large sums of money as bribes from some of Korea's largest business conglomerates. The total amount is close to 60 billion won, an amount that could purchase more than 80 apartments in Gangnam at current average prices. The companies alleged to have paid this money include Samsung, Lotte and SK.
And yet as far as we know, Ms. Park did not receive any of that money directly. Rather, most of the money was paid to one of several sports and culture-related foundations controlled by Ms. Choi. There is some suggestion that Choi may have been putting money away for Park's retirement. Park denies any knowledge of, or involvement in, this activity.
Furthermore, it is not always clear what the businesses received in return from President Park. In the case of Samsung, it is alleged that some business units were allowed by the National Pension Service to merge, while Lotte and SK were hoping to retrieve licenses to run duty free shops. They had earlier been stripped of these licenses. But even though she may have spoken with some of the business leaders concerned in private meetings, it is not clear that these benefits flowed directly from Ms. Park when she was president.
This may lead some to think that bribery charges would be hard to apply, because of the lack of direct connection between Ms. Park's duties as President and the consideration that the companies hoped to receive in return for their donations.
It is helpful here to look back at a previous case. In 1996, former presidents Chun Doo-hwan and Roh Tae-woo were also charged with bribery, along with charges relating to their roles in suppressing the Gwangju Democratization Movement in May 1980, and in taking over the presidency of Korea later that year. In its April 4, 1997, final judgment against Chun and Roh, the Supreme Court found that, "when one gives money and valuables to the president, that in itself constitutes the crime of making a bribe, whether or not the president actually exercised influence or not has no bearing on the constitution of the crime." This is because, as the head of the government, the president is in such an all-powerful position, and with so much influence on all aspects of policy and business matters, that the mere act of giving something to the president is enough to receive some of that influence.
Moreover, the judgment also reads, "in the case of bribery, it is sufficient that the money is paid or accepted in relation to the office of president; it is not necessary that there be a compensatory relationship to individual duties of that office." Therefore, the crime of receiving bribes here is more about the role than about the duties of the presidency. For this reason there are some who argue that, if the office of President is so omnipotent, and if those who hold it are repeatedly accused of bribery or influence peddling, then maybe the problem is a structural one. But we will leave that aside for now.
If the court determines that Ms. Park did indeed receive bribes either directly or through her friend Ms. Choi, and if the amounts received are found to be in excess of 100 million won, she could receive a prison sentence of anywhere between 10 years and life. If this is the case, the best post-trial outcome Ms. Park could hope for is a presidential pardon by her successor, President Moon. This is what enabled Chun and Roh to enjoy lives without being behind bars, when they were both pardoned in late 1997 by then-President Kim Young-sam, less than a year into their sentences.
Former judge Hwang Ju-myung is founder and chairman of HMP Law, a full-service Korean law firm. For more information, write to info@hmplaw.com.
