공정거래위원회의 전속고발제도에 관한 고찰

Abstract

It is 27 years since the antitrust law was introduced into Korea. Until now, there have been continuous and various efforts to improve the antitrust system, and the efforts are considered to be comparatively successful. However, previous trials for development of the system have been mainly concentrated on the substantive law, and procedural reform has not seen to be so sufficient. The prosecution monopolizes the authority to prosecute all kinds of crimes and has an almost unfettered discretion whether or not to prosecute a certain crime in Korea. But there are some types of crimes which need an exclusive accusation by the administrative agency for the valid prosecution. Such crimes are tax evasion, violation of fair competition, breach of industrial restriction, crime by constable who is temporarily converted from soldier. The National Tax Administration and its subordinate office have an competence to impose the monetary sanction on tax violators and bring an accusation against its defaulters. The Fair Trade Commission has a duty to maintain fair competition of free market and a power to sanction lawbreakers with correction order, penalty money or accusation. The Ministers of relevant departments are able to control industrial activity by flexible restrictions and versatile sanctions including accusation. The soldier who converted to constable or warder is not subject to the military law and the commanding officer of such soldiers has an authority to punish them with reprimand or accusation. And, what the KFTC is carefully considering introduction is so called the 'Consent Decree' or 'Consent Order'. It is known as a mechanism in which the relevant parties can quickly settle the case at issue, on condition that the enforcement promise not to investigate or accuse against the undertaking, on the other hand the undertakings agree to stop the challenged practices. By the introduction of the system of exclusive accusation, many administrative agencies could carry out their policies without excessive intervention of criminal justice. When the competent agency is reluctant to accuse serious offenders who deserve criminal punishment as a last resort, it cannot avoid the conflict with the prosecution or the victim. In this context the victim could bring a lawsuit to the court instead of the Constitutional Court for the order to enforce an exclusive accusation.