공정거래법상 조사방해죄의 해석, 판단기준 및 그 한계

Abstract

Monopoly Regulation And Fair Trade Act(hereinafter ‘MRFTA’) imposes criminal penalty of the illegal obstruction of investigation. First, the article 124 subparagraph 13 of MRFTA imposes a criminal penalty on a  person who refuses, interferes with, or evades an investigation conducted under Article 81 (2) through verbal abuse or assault or by intentionally blocking or delaying access to the site. Second, the article 125 subparagraph 6 of MRFTA imposes a criminal penalty on a  person who fails to submit a report or necessary materials or articles under Article 81 (1) 3 or (6), or who submits a false report or false materials or articles. Third, the article 125 subparagraph 7 of MRFTA imposes criminal penalty on a person who rejects, interferes with, or evades an investigation by concealing, discarding, or refusing access to materials, or by forging or falsifying materials during an investigation conducted pursuant to Article 81 (2). The revised MRFTA adopted a criminal penalty instead of administrative fines on the illegal obstruction of investigation. However, there is a significant doubt whether the above articles conform to the nature of Korea Fair Trade Commission(hereinafter ‘KFTC’)’s investigation. The legal nature of KFTC’s investigation power is regarded as voluntary with indirect measures of coercion. As a result, the criminal penalty on this violation does not go with the voluntary nature of this investigation. Under the voluntary nature of investigation, voluntary and effective consent to investigation is essential for the legality of investigation. The reasonable cause of investigation should be specified and suggested before the public officials of the KFTC access the office or place of business of a business entity or trade association and investigate its business and management, account books, documents, electronic data, voice-recording materials, video materials, and other materials or articles prescribed by Presidential Decree. The investigation should be carried within the necessary ranges and with less restrictive means. Coercion by criminalizing the obstruction of the office inspection should be limited within the minimum ranges. If the investigation is not legal or does not abide by the fundamental principles based on the constitution, the violation of the above articles could not be made.