자본시장법상 조사 제도의 형사법적 문제점

Abstract

There is a unique administrative investigation system in the former Securities and Exchange Act and Financial Investment Services and Capital Markets Acts. These acts enact a provision that public officials specified by Presidential Decree (hereinafter referred to as “investigative officials”) among those who work for the Financial Services Commission to interrogate the suspect involved in such as violation, seize goods, or search a place of business, etc. The general seizure and search are banned from Korean criminal law, a warrant of seizure or of search shall be issued in cases where a seizure or search is to be affected and shall be executed by a judicial police official under the direction of a public prosecutors. In other words the seizure and search are exceptional constraint disposition. The investigative officials are not the position of special judicial police in Act on the Persons Performing the Duties of Judicial Police Officials and the Scope of their Duties. But the provision includes they can carry out constraint disposition. The problem of an administrative investigation of investigative officials is clear, of course, it is actually vastly underutilized as yet. On the other hand, the proposal to enable this system is coming. This article pointed out the problems of criminal law according to the investigations of the investigation officials who doesn't have policed powers and proposed an alternative to forced investigative authority of administrative agencies.