미국 행정법의 금전적 제재(Civil Penalty)

In the U.S. federal administrative law, civil penalties stands for a system where “either administrative agencies or courts impose monetary penalties on private people.” Traditionally, administrative agencies did not sanction violations, while courts played a key role in it. However, due to the increasing socio-technical complexities, administrative agencies started to complement courts' enforcement power by obtaining the authority of imposing and assessing civil penalties. While no uniform law of civil penalties exists, hundreds of statutes have developed different forms of civil penalties. The accurate and comprehensive landscape of American civil penalties has never been introduced to Korean legal academia. This article conceptualizes the main types of civil penalties by carefully analyzing dozens of U.S. federal statutes and case laws that span antitrust, securities regulations, occupational safety, and environmental protection. This analysis illustrated the growing role of administrative agencies in imposing monetary penalties for violations, replacing traditional court proceedings. American scholars questioned the constitutionality of administrative civil penalties. First, they criticized an elusive distinction between criminal and civil penalties, which put the Double Jeopardy Clause in jeopardy by allowing the legislature to bypass stringent protection of individual rights in criminal procedures. Second, administrative civil penalties may violate the Seventh Amendment, a right to a jury trial. Moreover, the current practices of civil penalties encouraged “coerced settlements,” where individuals reluctantly accepted the deal given by administrative agencies under the risks of criminal penalties. Taken together, the U.S. federal civil penalties still possess multi-layered flaws theoretically and practically. In Jackesy v. SEC, the Fifth Circuit ruled that the SEC’s order of civil penalties violated the Seventh Amendment because administrative procedures could not accommodate a jury trial. However, this article finds that the “public rights” theory in the Fifth Circuit’s opinion is non-sensical because it relies on esoteric British courts’ jurisdictions which do not have concrete footings in the U.S. case law. Instead, it would be better to accept the fact that courts are not well-equipped to address bigger and smaller disputes and violations in a timely manner and to construct more effective judicial review systems for administrative penalties. The development of the U.S. federal civil penalties speaks to South Korean penalty systems by representing the difficulty of finding a balance between often-conflicting values such as adversarial legalism, due process, cost-efficient policy implementation, and administrative accountability.