공정거래법상 형사제재 규정의 정비방안

Abstract

If criminal punishment is the evil imposed on the perpetrator of a harmful actas a legal effect, even if it comes in such a light and humane form, punishmentcannot but be evil. The punishment imposed on the violation of the MonopolyRegulation and Fair Trade Act is the strongest means of sanction of a nation ona crime as a legal effect. This strong punishment can play the role of a catalystby promoting fair and liberal competition, encouraging creative activities ofenterprises, protecting customers and accomplishing the goal of the MonopolyRegulation and Fair Trade Act, that is, the balanced development of nationaleconomy. Yet, the punishment which has to be used as a catalyst is essentiallytaking a severe measure and demands strict justification. In spite of thenecessity for the strict justification of punishment, the Monopoly Regulation and Fair Trade Act has reinforced lots of punishment regulations including not onlythose on substantive violations but also those on the non-fulfillment ofcorrective measures and administrative duties and those to secure the activitiesof the Fair Trade Commission, and their level of restriction. This is beingexpressed as nothing less than the phenomenon of excessive punishments, andit cannot but have flaws and limits in its enforcement. There is the problem that the regulation of criminal restriction in theMonopoly Regulation and Fair Trade Act makes it difficult to be executedeffectively, but also, in terms of the interpretation of the law, it is limited bythe principle of legality, so it becomes difficult to be administered flexibly foreconomic phenomena, and when general regulations are enacted or thedelegated laws of the Fair Trade Commission becomes extensive for itsflexible application, there is the danger of being decided as a law violating theconstitution. In this respect, the regulation of criminal punishment is causingproblems on the whole in the execution of the Monopoly Regulation and FairTrade Act. As for the ways to fulfill the goals of the Monopoly Regulation andFair Trade Act, just the size of punishment has been increased so far, andserious consideration of proper restriction measures on diverse forms ofviolation of the Monopoly Regulation and Fair Trade Act has been insufficient. Then, appropriate restriction measures, in particular, the ways to reduce thesize of the regulations imposing punishment should be sought for first.