최적 과징금산정방식에 관한 법경제학적 분석: 공정거래법을 중심으로

The purpose of this paper is to probe into the optimal system of the administrative surcharge. This is a meaningful task not only because the surcharge is currently being stipulated in more than a hundred substantive laws in Korea often jointly with criminal sanctions, but because there has been a rapid increase in the number of legal disputes usually surrounding the (excessive) magnitude of the surcharge actually imposed to regulatory violators. For illustrative convenience, this paper focuses on the Korean Fair Trade Law, the reason being that the imposition of surcharges, both in frequency and scale, has been overwhelming especially in the area of antitrust and unfair trades. To be sure, virtually all the major analytic results from this paper are believed to shed beneficial implications to other areas of law as well, however. According to a large-scale survey regarding the normative opinions by scholars and legal experts, it turns out that the major goals of the surcharge have traditionally been two-fold in Korea: the ‘administrative sanction’ and the ‘disgorgement of unlawful profits.’ In addition, a relatively very small group of scholars has advocated its punishment role. This paper first recognizes that the goal of ‘administrative sanctioning,’ in fact, can lead to a variety of differing interpretations. Therefore, the paper has sought the most appropriate definition of administrative sanctioning. It is subsequently shown that, at least from the economic perspective, the essence for warranting the optimal surcharge system lies in the ‘full internalization of harm,’ that is,in reflecting accurately the ‘harm level’ caused by a violator and the ‘detection probability’ of violation. The economic reasoning next convincingly reveals that the alleged second goal of ‘taking back unlawful profits’ in the extant literature has undesirable characteristics. The paper demonstrates that a system following this second goal can fail to deter regulatory violation. Even worse, it would not be able to disgorge effectively the unlawful profits either. Hopefully, the law-and-economics arguments offered in this paper will, to a nontrivial degree, help the legislature and the judiciary in Korea have a more balanced view concerning the role and operation of the administrative surcharges in the ensuing future.