공정거래위원회의 디지털증거 수집의 적법성 강화 방안

Abstract

Due to the development and advancement of information technology, a object of administrative investigation is rapidly being replaced by digital evidence from material things. In response to this situation, several administrative agencies with authority to conduct administrative investigation have set up procedures and standards for collecting digital evidence, and have established an organization dedicated to the related tasks. The Fair Trade Commission(FTC) is a collegiate governmental authorities that independently conducts affairs under Monopoly Regulation and Fair Trade Act(MRFTA) through the investigation and deliberation of the violation of MRFTA. It declares itself to be in violation of the law and has the authority to impose fines and prosecute prosecutions. FTC has expanded the scope of investigation through the collection of digital evidence in order to detect cases of law violations more efficiently in case processing procedures. Due to the characteristic of digital evidence, collecting digital evidence for administrative investigations is more likely to infringe on the rights and freedoms of the people than the investigations of material things. Therefore, the conduct should be controlled according to lawful and due process. This study started with the consciousness of the issue of whether FTC's digital evidence collection procedure is operated through due process of law. As a result, it can be raised under the existing laws and related regulations, I recognized the problem as follows. First, under the current legal system, the procedure of collecting digital evidence by FTC is judged to be in violation of the due process principle guaranteed by the Constitution because it is not conducted in accordance with a legal basis. Second, considering that FTC has a role as the first instance court, the point that examine of evidence for digital evidence presented in the deliberation process of FTC is not practically achieved can be contrary to the constitutional principle of guaranteeing the right of access to courts. Recognizing these problems, I suggest to strengthen the legitimacy of the digital evidence collection process of FTC as follows. First, the essentials of the legal basis for collecting digital evidence of FTC should be enacted as laws. Second, the FTC's deliberation procedure should strengthen the procedures for examine of evidence for digital evidence. The purpose of this paper is to verify the meaning and nature of the digital evidence collection activities of FTC and to provide the procedural requirements and procedural procedures. As a result it is meaningful that the legality of FTC enforcement is strengthened.