자본시장법상 불공정거래 조사권한의 법적 성질에 관한 연구

The administrative investigation of unfair trading in the capital market is the work of the Financial Services Commission or the Financial Supervisory Service to verify the violation by exercising their investigative authority. Some say that the authority of investigation is actually a criminal investigation, given that it is an investigation for criminal punishment. Financial supervisory authorities in the U.S. and Japan maintain independence and operate due process and rights protection systems similar to the Criminal Procedure Act. Given the current legal system, the administrative investigation of financial supervisory authorities cannot be regarded as criminal investigative authority. The authority of the Financial Services Commission can be seen as administrative investigative authority in line with the principle of separation of powers, given the Constitutional Court's ruling and the legislative intent of the National Assembly. However, there is a lack of protection of the rights of the suspect. The separate operation of criminal and administrative investigations is necessary, along with the notification of the right to deny statements. If the witness refuses to conduct an administrative investigation, the penalties should not be applied to him. Granting the special judicial police authority to the Financial Supervisory Service would reduce efficiency of investigation, as it is separated from existing administrative investigation tasks. In the long run, it is necessary to consider granting investigative civil servants authority to employees of the Financial Supervisory Service.