동의명령제 도입에 대한 형사법적 고찰

Abstract

The system of Consent Order is the final decision by a court as a government has approved in such cases was illegally judged by an administrative agencies. Additionally, a consent order is a series of executive procedure expressing a voluntary agreement between two potential parties - a defendant being investigated especially for unfair trade practices and the government regulatory body - to a law suit. The general rule of consent order system, however, is that consent order becomes effective by the acceptance of a court, because it should not violate the powers of jurisdiction. In this way, a fact of consent order has the validity that binds the parties and becomes definitely effective. The system of consent order originates from the United States. It is called ‘Verpflichtungszusagen' in Germany and 'Consent decision' in Japan. In Korea, as the number of the cases which have been brought to the Fair Trade Commission is rapidly increasing in recent years, the procedural improvement for not only due process but efficient treatment of flocking cases is rising as a pending task around the enforcement authority. However, if the Fair Trade Commission which has the exclusive prosecution has the authority of consent order under unsystematic circumstances, the problem that the Fair Trade Commission infringe the right of a criminal prosecution of public prosecutors would happen. Therefore, in order to successfully introduce the system of Consent order, in the short run, the Fair Trade Commission should have the authority of consent order and should not have the authority of an exclusive prosecution, in the long run, public prosecutors should be endowed with the authority of consent order.