공정거래위원회의 전속고발권

Abstract

In Korean Monopoly Regulation and Fair Trade Act(hereinafter ‘Fair Trade Act’), there are private and public enforcement for violation of Fair Trade Act. Public enforcement is consisted of correction measures by Korean Fair Trade Commission, or penalty surcharges by the Fair Trade Commission, enforcements by the prosecution, and etc. Among them, it is necessary that the Fair Trade Commission must report violations of Fair Trade Act to the prosecution to press charges criminal penalties against violations of the Act. It is referred to as “the exclusive right to accuse.” The exclusive accusation right of Fair Trade Commission has maintained since 1980 when Fair Trade Act was legislated. Even though ‘the exclusive right to accuse’ may have some strong points such as preferential actions by specialized administrative agency and excessive criminal penalty controls, there is a fundamental problem that administrative agency might decide whether violations of Fair Trade Act will be enforced as criminal penalties. In particular, the Fair Trade Commission sometimes used the right only to some of violators, or did not use ‘the exclusive right to accuse’ for violations of Fair Trade Act. As a result, ‘the exclusive right to accuse’ of Fair Trade Act has been revised several times since 1980 to secure proper exercise of the right. Recently, the Act has revised again, and it will be enforced on January 17th 2014. In particular, the recent revision of Fair Trade Act is widened a range of accuser who can exercise ‘the exclusive right to accuse’ of the Act, and exempted voluntary reporters of collusion or cooperators on investigations on collusion from accusation. The criteria to use of ‘the exclusive right to accuse’ is still uncertain, however, and the fundamental problem is still exist even in new Fair Trade Act. On this situation, first of all, it is needed to control use of ‘the exclusive right to accuse’ for some violators by applying the principle of inseperable to the right because it is hard to abrogate the right. Secondly, the Act should clarity a range of report duty of the Fair Trade Commission to increase predictability of ‘the exclusive right to accuse’ use. Based on that, investigation agency increases its speciality on investigation or judgement on whether violations of Fair Trade Act are existed. As a result, there would no longer be need of ‘the exclusive right to accuse’ by the Fair Trade Commission. At that time, the right should be abrogated since the present system of ‘the exclusive right to accuse’ is that only administrative agency can control criminal penalties.