하도급법상 3배 배상제도와 의무고발 요청제도의 합리적 운용에 관한 고찰

Abstract

In this article, I will try to find a way to rationally operate the triple compensation system including the punitive elements introduced in the Fair Subcontract Transactions Act (‘Subcontract Act’) in Korea and the system to request to file a mandatory criminal charge, and proceed with discussion in a way that concludes by suggesting an improvement plan to pursue effective policy mix. In the case of a triple compensation system, it is necessary to find a rational operation plan in such a way as to establish a standard so that an appropriate calculation can be made in calculating the compensation amount. In this regard, the public enforcement of violations of the Subcontract Act should seek improvement measures in terms of the selection of the enforcement method that is appropriate to the nature of the violation and the effective allocation of the enforcement resources of the Korea Fair Trade Commission (‘KFTC’). When the level of administrative enforcement for violations of the Subcontract Act is adjusted considering the role of the triple compensation system, a foundation can be created in which the total of enforcement combined with public enforcement and private enforcement will be suitable for achieving appropriate level of deterrence. On the other hand, a violation that is subject to criminal punishment should be confined to such cases as it is not possible to realize the purpose of the law unless the penalty is applied because of the seriousness of the illegality and the severity of the act in light of the purpose of the Act. Therefore, it is necessary to judge whether or not the complementary role of criminal punishment is required by 'social harm-based standard' together with 'act-based standard'. In short, the problem of improvement for rational operation of the triple compensation system and mandatory criminal charge request system under the Subcontract Act should be approached from the viewpoint of pursuit of optimal enforcement through establishment of complementary relation between public enforcement and private enforcement.