공정거래위원회 전속고발권의 헌법적 문제

Abstract

Article 71(1) of the Monopoly Regulation and Fair Trade Act prescribes that “Any offense as prescribed in Articles 66 and 67 shall be prosecuted by a public action only after a complaint is filed by the Fair Trade Commission”. This exclusive right of complaint, however, has resulted in the scarce prosecution and punishment of corporate crime and the lack of the protection of the private consumers. From 1981 to 2009, the events filed to the prosecutor’s office by the Fair Trade Commission are only 1.45% of total cases, and operation of Monopoly Regulation and Fair Trade Act is treated almost as administrative procedures. Accordingly, a sense of guilt of businessman or the general public for violations of Monopoly Regulation and Fair Trade Act is very small. So, the system of Exclusive Right of Complaint of the Fair Trade Commission has not contributed to the original purpose of the system. Therefore, it has been asserted that the exclusive complaint right should be abolished and a private person's voluntary complaint and a discretion of the public attorney should be allowed. Furthermore, the system is essentially unconstitutional, because it violates the right of consumer, the right of equal protection, the right of pursuit of happiness, the right of statement during the proceedings of the trial, the principle of proportionality, and the justification of system. Therefore, the exclusive right of complaint of the Fair Trade Commission should be abolished. The government and the National Assembly have no discretion concerning the abolishment of the system. On the other hand, the Constitutional Court should declare Article 71 of the Monopoly Regulation and Fair Trade Act unconstitutional and void.