공정거래위원회 법적 성격과 사건처리 및 불복의 절차

Abstract

The Korea Fair Trade Commission(the "KFTC") possesses dual characteristics; a commission with quasi-judicial powers and central government agency. Internal procedures within the KFTC to handle cases and cancellation procedures at courts to overturn KFTC's actions are not structured in line each other. It causes diverse legal problems and led to recent criticism that calls for expanded self-defense before the KFTC and change of the current two-tier review system at courts. The KFTC may be characterized as a quasi-constitutional agency in that it is established to satisfy requirements of economic regulation by the Constitution. In terms of principles of administration organization, the KFTC corresponds on integrated independent regulatory commission and, at the same time, on ministerial level central government agency. Possessing those two conflicting position and powers allowed the KFTC perform a lot of achievements in the past years. It also caused many problems, however, that the enforcement powers of the KFTC as a central agency worked to undermine independence of the KFTC. The KFTC needs to be re-characterized as a pure independent regulatory commission in the long run. For a transitory short term, while possessing the position as a central agency, the KFTC needs to separate policy function from quasi-judicial functions including investigation and case processing. Case review and decision making function by the Commission should be separated from the investigation function by the Secretariat. Case handling procedure at the KFTC should be restructured to meet requirements to be an independent regulatory commission with quasi-judicial powers. Current procedures, quasi-judicial in appearance, are far short from proper level. Many complaints are produced because of unsatisfactory procedural rules that is less than those at courts. Structural problems of non-division between prosecution and decision making exist, too. As a result, measures to reduce number of cases before the KFTC need to be adopted. Strengthening procedural rights of defendants before the KFTC is also required. Discussions to change exclusive jurisdiction at the Seoul High Court to general jurisdiction at regional administration courst are without proper grounds. Current two-tier review system does not infringe constitutional rights for judicial review. Issues of unsatisfactory procedures at the KFTC does not justify introduction of three-tier system. Rather, current two-tier system may better contribute to promote specialty and integration of the KFTC as a quasi- constitutional organization. It is more efficient and proper to cure problems regarding independence and procedures by measures identified above rather than abolishing current two-tier system. 주제어(Keyword):합의제 행정기관(commission agency), 독립규제위원회(independent regulatory commission), 중앙행정기관(central government agency), 준사법권한(quasi-judicial power), 2심제(two-tier review system), 방어권(rights to self-defense), 절차적 권리(procedural rights)