개별 행정영역의 행정조사에 있어 영장주의 적용여부에 관한 공법적 고찰 ― 행정영장과 closely regulated industry 논의를 중심으로 ―

Administrative investigations has been recognized as the public regulatory action which does not require substantive or procedural strictness, while the situation is rapidly changing as the administrative actions becomes broader and diverse. For instance, simple and routine administrative searches under the Hosing Act or Fire Service Act are recognized as less invasive approaches, while administrative searches under the taxation, finance and fair trade regulations are considered as more invasive administrative actions, which needs strict substantive or procedural control. This paper tried to review the administrative search system whether the warrant before or after the investigation is required, and if needed, the burden of proof to issue the warrant would be the same as the criminal procedures in comparison of the United States’ administrative search system. Administrative search system in the United States is considered not only as the criminal procedure but also as the administrative procedure, while most states or federal court adopts administrative search warrant system and review cases under the “closely regulated industry” decisions. Under the administrative search warrant system, the government bears less burden of proof than that of the criminal procedures, and it could be waived when the investigators are involved in the specific industry including closely regulated industry. The areas of the closely regulated industry has been recognized by the court’s decisions including “liquor, gun, mining, scrap car” industry. The court review the industry whether the public interest stronger, the regulated whether the private interest is less invasive, the regulations whether the search methods and contents are clearly regulated, and the regulated could be anticipated or expected that the industry they are engaged in are closely regulated industry. In Korea, the framework act on administrative investigation has been introduced in 1996, and it specified the procedural control methods such as the time and numbers of investigation, voucher presentation etc.. The administrative warrant system and the discussions on the closely regulated industry could be considered in balancing between the public interests of investigation and private interests of each industry and the people.