공정거래법 집행에서 절차적 쟁점 - 적법절차 원칙 실현을 위한 해석론 및 입법론 -

Abstract

In order for the constitutional principle of due process to be properly established in the Korean Antitrust law enforcement procedure, the parties' right to copy, participate in the procedure, and to state their opinions must be properly guaranteed. It is necessary to interpret the law in which the principle of due process are balanced with precedents. For this, revision of law is sometimes required. From this point of view, the FTC procedure should conform to quasi-judiciality, and the adversary procedure, committee decision-centeredness, and committee directism should be implemented. In order to implement due process principles, the FTC's investigation decision's dispositionality was recognized and the following principles, such as necessity, proportionality, and relevance should be guaranteed. Public documents stating the purpose of the investigation and storage records containing the submitted objects shall serve as criteria for the limitations of the investigation. The case of ordering the submission of an information storage medium such as a hard disk should be restricted. The right of parties and lawyers to participate in the investigation of digital evidence should be guaranteed. The process should allow all experts to participate in the statement investigation. In the implementation of EEO, the right to participate should be substantially guaranteed. It is also necessary to make it mandatory to investigate evidence in the FTC's hearing procedure. Submission order should be made possible in cancellation litigation and injunction claims through revision of the law. In administrative and civil lawsuits, it is necessary to consider the illegality of the Fair Trade Commission investigation procedure while judging the actual value of evidence. In criminal proceedings, a careful approach is also needed to recognize the admissibility of evidence in the statement prepared by the Fair Trade Commission. It can be said that all of the above are necessary for the realization of the principle of due process in litigation proceedings.