공정거래법상 과징금 산정과 법치국가원리

Abstract

Since last three decades competition law and policy in Korea has experienced amazing developments from not only substantive, but procedural law aspects. Various provisions were amended for being harmonized with global standard and new institutions were adopted from advance competition law regimes. Surcharges, introduced by enacting Korean Anti-Monopoly Act(hereafter “the Act”) of 1980 for the first time in Korea, are understood as mixture of administrative sanction and disgorgement of illegally earned profits. Under the tendency that surcharges of extremely high level have been imposed mainly in order to enhance their preventive function, this article throws a correspondingly high caution to the necessity to guarantee rule of law principles in the surcharges procedure. From this perspective, current surcharges practices of the KFTC shows serious drawbacks, ie. unlimited amount of surcharges, unnecessary overlap of surcharges and damages or fines, judicially unconstrained discretion of the KFTC, and lack or misconception of guiding principles and calculation methods, etc. This article suggest fundamental change from the past approach that is to re-define legal character of surcharges, to re-classify pecuniary sanctions, to simplify calculation methods and therefore to guarantee more legal certainty and predictability, all of which are likely to contribute to more effective enforcement of the Act.