공정거래위원회의 조사권 행사와 형사절차상 원칙과의 관계

Abstract

As increased number of cases are investigated by Korea Fair Trade Commission(KFTC), huge amount of surcharges and corrective measures are imposed by KFTC which is called “Economic Prosecutors”. On the other hand, more and more obstruction cases are being reported at the center of which lies big companies. Under the Korean Monopoly Regulation and Fair Trade Act(MRFTA), most offenses such as cartel conduct could be the subject of both administrative surcharges and criminal fines or imprisonment though KFTC does not have criminal investigation power or power to use coercive measures including warrant. From the investigated companies’ viewpoint, there is no signal whether the investigation aims at administrative surcharges or criminal imprisonment and when the original administrative procedure shifts to the criminal stage. Every evidence collected by KFTC inspectors could be submitted to criminal court. It means that KFTC’s investigating power could be useless as well as borderless. These fators partly explain why there is a confusion on the nature of KFTC’s investigation power and why conflicts between Investigating power and rights to defense grow bigger. In this paper, by looking into both the general nature of investigating power and the specific legal issues raised in the real practise, applying basic principles of Constitution and criminal procedure, I tried to suggest some ideas to solve this ambiguous phase. Investigation methods prescribed under the MPFTA include summoning, ordering to report or submitting information, entering the office or place of business, etc. Failure to meet the proper requests by KFTC without justifiable reasons shall be charged with administrative or criminal fine or imprisonment. The legal nature of KFTC’s investigation power is regarded as voluntary in general with the indirect measures of coercion. But in some areas, whether this voluntary nature is maintained is doubtable. For example, entering the office or place of business accompanies the intrusion of the residence and search of the property, which is approved only under the warrant issued by the competent court unless there is a consent of the owner of promises. So, the voluntariness of the consent should be the most important factor judging the legality of the investigation. In that regards, coercion by criminalizing obstruction of the office inspection, especially criminalizing the act of just objecting or delaying the entrance of inspectors should be reexamined. This obstruction clause results in depriving the citizen of the right to opt for not being investigated, which is contrary to the voluntary nature of KFTC's investigating right.