공정거래법상 형벌규정에 대한 형법이론적 분석과 개정법의 방향

Abstract

Penalty provisions from article 66 to article 68 of Monopoly Restraint Fair Trade Act(MRFTA) of Korea cover most of violating practices of MRFTA. The wide scope of the penalty provisions aggravates shrinkage of free activities of enterprises, increases cost of criminal justice and transaction, and makes complicated fair standard of exclusive accusation by Korean Fair Trade Commission(KFTC), leading to criticism against rare filing of the executive accusation. From the perspective of so called personal legal interest (personale rechtsgut) principle, consumers’ welfare is appreciated as legal interest protected by main penalty provisions of MRFTA. As a result of analysis of the level of infringed consumers’ welfare and blameworthiness of major types of behaviors violating MRFTA, the following types of behaviors are enumerated from the highest level to the lowest : hard core cartel, some of abuse of market-dominant position > other abuses of market-dominant position > unfair transaction practices, anti-competitive merger, violations of regulation of conglomerates > neglect of duty to report In addition, a penalty provision against manipulative behaviors of law conflicts with legality principle, which needs to be de-criminalized. In case of fake report and fake disclosure, imprisonment should be adopted as a proper type of penalty besides fine in light of their blameworthiness and endangerness of public integrity. Finally, KFTC officials need to be equipped with proper power to obtain evidence admissible in a criminal trial through revision of Act on Power and Position of Special Judicial Police Officer. Revising MRFTA from criminal justice perspective will contribute to decreasing discretion of filing exclusive accusations by KFTC. With active cooperation with prosecutors and fair and transparent guideline of exclusive-accusation, the revision will make silent existent dispute on exclusive accusation system of KFTC.