공정거래위원회의 현장조사의 법적 성질과 한계에 대한 실무적 고찰

Although dawn raids have become a primary investigation tool of the Korea Fair Trade Commission (“KFTC”), there still remain uncertainties over their legal nature as well as their workings and limitations when employed in practice. Against this backdrop, this study aims to define the legal nature of the KFTC’s dawn raids and their procedures and limitations from the perspective of a legal professional. First, KFTC’s investigations, including dawn raids are an administrative procedure that should governed by different rules from those for criminal investigation. Second, a voluntary consent by a company under investigation should be a prerequisite for the KFTC’s investigation whichout which an investigation cannot be initiated. Next, a decision of the KFTC to initiate a dawn raid should be a matter contestable through an administrative litigation. Lastly, the KFTC’s dawn raids should strictly comply with an applicable due process. In light of the foregoing, this study proposes that the KFTC’s dawn raids should abide by the following procedures given their legal nature. First, the KFTC should specify the purpose and scope of the investigation in an official inspection notice that is presented to the investigated company at the beginning of a dawn raid. Second, the right to counsel and attorney-client privilege should be protected throughout the investigation to ensure due process of law. Moreover, this study discusses specific ways to inspect materials of the company and o get voluntary consent. To summarize, this study analyzes the legal nature of the KFTC’s investigation and recommends procedural improvements for dawn raids, which are expected to contribute to elaborating legal standards for the KFTC’s investigation and preventing disputes that may arise from a regulatory gap.