공정거래법상 전속고발제도에 관한 연구 - 법집행 적정성의 관점에서 -

Abstract

Competition law is a basic legal foundation in market economy and the enforcement of the law has a tremendous impact on the market. Nonetheless, it is not easy to strike a balance between over-enforcement and under-enforcement. The Monopoly Regulation and Fair Trade Act(MRFTA) endows the Korea Fair Trade Commission(KFTC), which has specialty in economic analysis and detailed market analysis, with the exclusive authority in filing a complaint for criminal prosecution on violation of the Act. According to Article 71(1) of the Act, any offense as prescribed in article 66 and 67 shall be prosecuted only after a complaint is filed by the KFTC. The purpose of this article is to assure appropriate enforcement of the Act by allowing the KFTC to judge in advance whether to apply administrative measure or bring the case to prosecution for breach of the Act. At the same time, the Act limits the discretionary power of the KFTC in filing a complaint. According to Article 71(5) of the Act, upon receiving a request for filing a complaint from the Prosecutor General, the Chairperson of the Board of Audit and Inspection, the Administrator of the Supply Administration or the Administrator of Small and Medium Business Administration, the chairperson of the KFTC shall file the complaint with the Prosecutor General. In Korea, both corporations and individuals are subject to criminal prosecutions as well as administrative sanctions for most violations of the Act including cartel. There are many countries that criminally prosecute for cartel conduct including price fixing, bid rigging, and horizontal market allocation. However, it is hard to find the example of legislation that allows both administrative sanctions and criminal sanctions except for Japan, which rarely punishes corporations for the infringement of competition law criminally. I think that double sanctions for corporations is not desirable or effective for deterrence. The sanctions against an individual could be a more effective deterrent than the sanctions against corporations. Especially, the risk of jail could encourage individuals to resist corporate pressure to enter into violations. The sanctions against corporations are not effective because the sum of criminal penalty is relatively too weak due to joint penal provisions in the light of the history of legislation.