국제카르텔 역외 형사집행 방법론에 대한 소고

Abstract

International cartels are serious cross-border offences that cause grave damage to a number of consumers. The international community has long recognized the need for strict law enforcement against these cartels and, thus, the ‘global convergence’ of law enforcement is becoming more evident. However, the law enforcement against international cartels conducted by the Korean Fair Trade Commission(KFTC) and the Ministry of Justice(KMOJ), is insufficient in the aspects of restitution and deterrence. Considering the widely scattered evidence across borders, a collaboration of relevant countries is inevitable for the effective law enforcement of international cartels. In this regard, the mutual legal assistance(MLAT) and the extradition are the most effective tool for international cooperation, as the parties shall be under legal obligation by the international treaty, enabling compulsory investigations such as search and seizure or detention during the implementing procedure. MLATs and extradition could be related to the criminal sovereignty, economic interests and public sentiment. Therefore, the requesting and requested countries may face some complex and sensitive conflicts during the procedure. The judgments from the parties concerned may differ depending on the technical aspects such as, double criminality, specificity and double jeopardy(non bis in idem). Nonetheless, the each country should note that the strict and impartial law enforcement regardless of the nationality of the stakeholder will be the sole path to win the trust of the international community and, ultimately, to protect domestic companies and people. The trust between judicial authorities of concerned countries is a key to the success of MLATs and extradition. In this respect, the importance of developing the expertise of the working-level officials and enhancing their management skills outweigh that of designing an effective cooperation system between judicial authorities. This will begin with the thorough guarantee and implementation of ‘due process’ and it will bear fruits through active cooperation based on ‘reciprocal equality’ with an aim to ensure MLATs and extradition.