소상공인 등 영업자 규제 차등화를 위한 행정형벌의 과태료 전환

Abstract

In the current situation where the socio-economic damage caused by COVID-19 has not been fully recovered, the request for reform of unnecessary or excessive economic regulations is higher than ever. However, in regulatory reform, we need to actively consider the application of so-called ‘regulatory tiering’ that responds by appropriately adjusting the degree of regulation according to the scale or characteristics of the the subject of regulation, rather than a collective and comprehensive deregulation. As for regulatory tiering, the grounds and policies have already been established in legal and institutional aspects through the 「Framework Act on Administrative Regulations」 and the regulatory impact assessment system for SMEs. However, regulatory tiering can also consider various types of applications, such as exemption from obligations, relaxation of standards, simplification of procedures, easing of enforcement, and reduction of administrative penalties or conversion to administrative order punishments for certain size and type of companies or industries, such as micro enterprises. This study reviewed the ‘conversion of administrative criminal penalties to administrative fines’, which is relatively easy to apply and is considered to have high policy effects, and examined various legal regulations that stipulate administrative criminal penalties(fines) and the substance of violations of administrative regulations. Through this, it was investigated whether the conversion of administrative fines would be realistically possible. The transformation of administrative criminal penalties into administrative order punishments, that is, the conversion of administrative criminal penalties to administrative fines, needs to be considered from two perspectives. First of all, in the case of an act that indirectly violates the administrative purpose and is subject to administrative order punishment, it is requested that the administrative criminal penalty be converted into an administrative fine according to the essential nature of the object. In addition, since it is an act that directly violates the administrative purpose, in principle, even if it falls under the object of administrative criminal penalty, if the violation of the law is minor, it is necessary to make administrative criminal penalties into administrative order punishments in order to prevent the mass production of ex-convicts. In this study, the case where the upper limit of the fine is 5 million won or less was set as a ‘minor violation’. Accordingly, based on the existing standards for drafting and reviewing Acts and subordinate statutes, a total of 730 legal regulations that stipulate fines of up to KRW 5 million as sanctions for violations of administrative regulations were reviewed, and 30 of them were suggested to be converted into administrative fines. The review results of this study can be used as basic data when the competent authority conducts a full-fledged review in the future. It is hoped that the conversion of administrative criminal penalties to administrative fines will be implemented in the future in a way that can alleviate the burden on business operators such as micro enterprises.