On 28 September 2016, Improper Solicitation and Graft Act came into force. It was socially extremely influential, even before its enforcement. The Act explicitly prohibits “improper solicitation” and “receipt of money, goods, etc”. It provides what improper solicitations are in detail(Article 5(1)), and subsequently exceptions of them(Article
5(2)), the last one of which is “any other act deemed in accordance with social norms(Article 5(2)7).” Likewise, allowing receipt of money, good, etc(Article 8(3))followed by what ban on receipt are exactly written(Article 8(1),(2)) and the lastexception is upon money, goods, etc. permitted by other Acts, subordinate statutes, standards, or social norms(Article8(3)8). My quenchless curiosity is about what social norms are and how it is construed, this is the reason of the writing.
The term of social rules(social norms) is found in the Article 20 (Justifiable Act) of Korean Criminal Act clearly. It(Justifiable Act) means an act which shall not be punishable because illegality is denied even if the act are prohibit by criminal law. An act permitted by social rules(social norms) is one of justifiable acts. Then, are both
social rules(social norms) identical? I have researched several cases to answer this question. The concept of social rules(social norms) are mainly used as criteria in the stage of deciding illegality in tort cases. In the cases, it can construe social common notions, average person’s idea, sound & common sense of the community. Whereas,
the concept of social rules(social norms) function as elements deny illegality of an act which is already consist of the prohibition in criminal cases, and Supreme Court has been extremely prudent.
On the one hand, it seems not to consist of forbidden act from the beginning, if an act is determined to be permitted by social norms when in terms of the analysis upon the way of ban improper solicitation and receipt of money, goods, etc of Improper Solicitation and Graft Act literally. Then, as a result, the concept of social norms of
Improper Solicitation and Graft Act and the one of Criminal Law are different each other although being of the same expression.
On the other hand, the Improper Solicitation and Graft Act includes unnecessary provisions because it is a kind of criminal law and Article 20 of Korean Criminal Law apply every criminal case to determine guilty or not even though it is does not write down about social rule. This kind of issue will be addressed someday by the Supreme
Court. I do provide some tips to help construe the Act prior to the decision of the Court because vaguely waiting for the determination of the Supreme Court can make the Act meaningless itself.