The issue of corruption is not solely confined to one nation, but rather it transcends borders requiring the international community to cooperate in resolving this problem. The international community began to make effort in anti-corruption with the enactment of the 1977 Foreign Corruption Prevention Act in the United States, underwent the 1999 Organization of Economic Cooperation and Development (OECD) Anti-Bribery Convention, and signed the UN Convention against Corruption in 2003. The Group of 20, a world economic cooperation mechanism that gained importance with the breakout of the Global Economic Crisis in 2008, found corruption as a critical source of the financial crisis, adopting the Anti-Corruption Action Plan reiterating the importance of international cooperation against corruption, annexed to the G20 Seoul Declaration in 2010.
This Action Plan demands member states to sign and implement major anti-corruption conventions such as the UN Convention against Corruption and OECD Anti-Bribery Convention, as well as to intimately cooperate in combating corruption by preventing corrupt officials to access financial systems, considering a cooperative mechanism in denying their entrance or asylum, and securing hidden assets overseas. Also, each member state agreed to submit an annual report for a practical implementation of the Anti-Corruption Action Plan.
In order to adjust to such transition in the international arena in a leading and active manner, it is seen that Republic of Korea, as a member state of the G20, should undertake elementary research on the Anti-Corruption Action Plan for its proactive implementation and realign policies and systems according to such in the near future.
III 2-4 in the Anti-Corruption Action Plan in the Annex III of the 2010 G20 Seoul Declaration proclaims that “to prevent corrupt officials from being able to travel abroad with impunity, G20 countries will consider a cooperative framework to deny entry and safe haven in our jurisdictions to corrupt officials and those who corrupt them. To that end, G20 experts will examine the possibility to develop common principles for national measures to deny entry of corrupt officials, taking into account existing practices and barriers, and recommend frameworks for bilateral cooperation on the application of this authority”. Here, the purpose of this research is to find a domestic legal basis to realize the concept of ‘developing international cooperation and cooperative systems against corrupt crimes of officials’, and suggest a direction to which systems and policies concerning denial of entrance and asylum to corrupt officials should follow.
This report builds the argument on the premise of the need to deny entrance or asylum to corrupt officials, focusing on the normative requirements and issues dealing with domestic implementation of ‘denial of entrance and asylum to corrupt officials’, including denial of entrance and visa application by each country, and legal systems such as the US Presidential Proclamation 7750, centering on the legal systems of major G20 member states. Denial of entrance and asylum to corrupt officials has a meaning not only in terms of fulfilling international agreements, but also in terms of overcoming the limitations of current international criminal law and strengthening its capacity in effectively combating corruption crimes. In particular, denying entrance of corrupt officials despite the premise of official impunity is in the center of the debate.
In realizing such endeavor, however, it is necessary to understand the implications and systematic details of denying entrance or asylum to corrupt officials based on international efforts and agreements on anti-corruption, such as the OECD Anti-Bribery Convention and UN Convention against Corruption. In relevance to denial of entrance and asylum to corrupt officials, Presidential Proclamation 7750 of the US serves as a legislative case worth referring to. This Proclamation takes meaning in that subject to denial of entry may not only be officials who committed bribery or duty violations but also their assistants and beneficiaries of the crime. On this context, Article 11(3)~(4) of the Immigration Control Law which provides reasons for denial of entry may be adequately used as a legal foundation to implement domestic policy of denying entry and asylum to corrupt officials. In other words, the normative nature of this policy allows it to work more effectively as a proclamation or a ministerial ordinance under the Immigration Control Law than as a separate special law.
Denial of entry and asylum to corrupt officials depends greatly on the discretion of each state, allowing human rights violations to occur against foreigners. However, foreigners acquire legal status under domestic law only after they are qualified under the Immigration Control Law, so the measure of denial of entry and asylum does not apply before entry. Therefore, with the limitation of legislature, it may be allowed to provide each state with expansive discretion in deciding the entry of foreigners under general terms such as ‘national interest’. However, even if a strong discretion on allowing entry of foreigners is allowed to recipient states, developing a standard criteria or a guideline is important for precise implementation of anti-corruption strategies and maximizing its effects along with quick settlement. Also, for a successful implementation, international cooperation as well as exchange of information should be active.
On this logic, the following may be recommended in the case of legislating or systemizing denial of entry and asylum in Korea. First, the implementation should take a form of Presidential Proclamation or Ministerial Ordinance under the Immigration Control Law, concretizing the reasons for denial under Article 11(3)~(4). Also, in a pursuit of systematic establishment of legal norms, it is necessary to consider the compatibility of a number of domestic laws related to anti-corruption and set the boundaries of those subject to denial reflecting them, concerning the concepts of corruption crimes and its boundaries.
Although a debate on the denial of entry and asylum to corrupt officials has not emerged yet in Korea, this research will hopefully open up a variety of perspectives on this issue. It is expected that diverse strategies against corruption to prevent and combat corruption crimes will go through substantial debates, thereby finding the right way to pursue its goals and principles and gain ground as effective policies in the years to come.