과징금제도에 관한 법경제학적 분석:헌재 결정(2001헌가25)을 중심으로

The Constitutional Court in Korea held in 2003 that Article 24-2 of the Korean Fair Trade Law is constitutional. The clause in question involves the imposition of the administrative surcharge on those who violate the regulation associated with supporting subsidiaries in unfair ways. However, the decision was marginal. Four out of the nine Justices were rather strongly dissenting. In retrospect, if the decision had been the opposite, there would have been dramatic changes in the surcharge system as a whole; the surcharge is being stipulated in more than a hundred substantive laws in Korea currently, occasionally with criminal sanctions. The purpose of this paper is to probe into the majority opinions of this case from the perspective of law and economics. The major issues upon which the Constitutional Court inquired were two-fold. First, it examined whether the article contradicts the constitutional principle of ‘Non bis in idem’ (or ‘no double-jeopardy’). Second, the Court also questioned whether the article allows only an adequate level of discretionary power to the law enforcement agency (i.e. the Korea Fair Trade Commission in this case). The majority decision took a affirmative position on both accounts. This paper investigates the validity of the main arguments that led the Court's final decision by utilizing well-established economic theory, revisiting the cases overseas referred therein, and undertaking a certain level of empirical tests. Although I agree on the final decision itself, I present a few representative shortfalls found in the arguments and evidence leading to the decision; for example, the somewhat misused 'disproportionality test,' an unclear understanding of the essential goal of the administrative surcharge, the lace of sufficient warning against excessive discretion exercised by the Commission, etc. Hopefully, this paper will help the judiciary have a more balanced view on these issues in the ensuing judgments.