통신법상 과징금 부과의 절차적 개선방안

Abstract

The administrative fine by the Korea Communications Commission ("KCC") has to be strictly subject to due process of law. The essential elements of the due process of law with regard to the administrative fine by the KCC are as follows. First, the protection of the opportunity to submit the opinion regarding the administrative fine by the KCC and the guarantee of hearing opportunity. Second, the high independence of the commission and the promotion of active discussion in the commission. Third, the guarantee of judicial review. Fourth, the existence of the delegation from the law. Regarding the first element, there are three proposal to improve the procedure. Number one, The current regulation is not clearly protecting the opportunity of the hearing. Thus, the hearing opportunity has to be clearly guaranteed by the specific provision of the law. Number two, KCC is giving only 10 days to prepare to submit the opinion of the alleged law violator. Because this period is too short to protect the opportunity to submit the opinion, it has to be increased to at least 2 weeks, and desirably 3-4 weeks. Number three, KCC has to show the alleged law violator how the amount of the fine is calculated before KCC decide to impose the fine. Regarding the second element, minority opinion has to be put into the decision to promote the role of independent commission to consider various values and perspectives in a complex matter. Currently, KCC doesn't put the minority opinion in its decision. Regarding the third element, it is better to abolish the appeal procedure based on the KCC's internal rule because it doesn't have delegation from the law. Other adjudication procedure based on effective law can replace the role. Regarding the fourth element, the request of the documents at any time by KCC has to be based on the effective law. The KCC's internal rule provides the KCC with the power to request documents at any time. However, at this moment, only the request of the documents at the search site is approved by the law. Thus, if KCC would like to have the power to request documents at any time, effective law has to precede.