행정소송과 형사소송에서 독점규제법 위반사건의 비교 검토

Abstract

A Legal action for violation of the Monopoly Regulation Act could be made in a variety of ways. The administrative regulations, such as corrective measures or monetary penalties imposed for violations are most common among the legal actions, criminal sanctions based in article 66-68 in Monopoly Regulation Act or an action for damages by civil procedure based in article 56 in Monopoly Regulations Act are possible. In any Case a regal action must presuppose a violation of Monopoly Regulations Act, but each procedural principle will affect a process and decision of a legal action. Therefore, its legal conclusions when dealing with antitrust law violations in criminal litigation or administrative proceedings may appear differently. Specifically the possibility of different judgments in criminal proceedings and in administrative proceedings can be realized in the following three aspects. First, we can assume the difference between the regulatory requirements in Monopoly Regulations Act and the requirements established as a premise of criminal offenses. Second, there are differences in terms of burden of proof. While preponderance of the evidence is the standard required in administrative litigations and beyond a reasonable doubt as the highest standard of the burden of proof in jurisprudence must be applied in criminal proceedings. Third, the difference between the conclusions in criminal proceedings and administrative litigation may be due to different judgments about the competition restraints. In particular, with respect to the third reason, although the administrative decisions can not constrain the judgement of the courts, it is necessary that both share the understanding of the competition policies and respect each other’s opinions.