제재처분 승계에 관한 일고(一考) -프랑스법상 행정제재 개념을 기초로 한 대법원 판례의 비판적 검토-

The notion of administrative sanctions stricto sensu includes a variety of administrative actions, such as disciplinary actions, compensation orders, penalty taxes, withdrawal of administrative permission/approval/authorizations or suspension of business, administrative fines, and public announcement of violations. Among these sanctions, the withdrawal of administrative permission/approval/authorizations, the suspension of business, and administrative fines are imposed to those who have permission for their own businesses. The status of the business permission holder may be transferred to successors under the approval of competent authorities in statutorily permitted cases such as inheritance, merger, company split, acquisition of all business facilities and equipment. And in such cases, whether the liabilities in administrative sanctions can also be transferred to the successors becomes an issue. Administrative sanctions refer to disadvantages imposed by administrative agencies for the purpose of punishment against one’s infringement of the law. In this sense, they are different from administrative policing, which is essentially preventive. Administrative sanctions are similar to criminal punishment because both of them have a punitive nature in that they seek retribution of the infringement of law. Therefore, administrative sanctions can be imposed solely on the basis of personal liabilities. Withdrawal of administrative permission/approval/authorizations as an administrative sanction differs from that for public interest causes, which are not punitive, and is also distinguished from ex officio cancellation of administrative permission/approval/authorizations because the latter applies only when such administrative permission/approval/authorizations are falsely issued based on factual or legal errors. Given that the judiciary has exclusive power to punish citizens, administrative sanctions which are imposed by administrative authorities must be treated as exceptions and ensured legal safeguards such as the due process of law, the principle of nulum crimen nulla poena sine lege and ne bis in idem, the principle of proportionality, the principle of non-retroactivity of punishment, to name a few. In other words, the rule of law has to be strictly respected in the forms and procedures of administrative sanctions as well as their substances. As a corollary, the liabilities in administrative sanctions cannot be succeeded to others unless explicitly codified in law, and such statutes must comply with constitutional principles. The discussions and debates in French law regarding the permissibility and limits of administrative sanctions provide significant and helpful insights on this. However, the Supreme Court has taken a fairly lenient stance on the succession of liabilities in administrative sanctions by endorsing the succession even if there is no explicit law allowing such succession, on the grounds that certain administrative sanctions are imposed on the business itself, not its operator. Furthermore, even when there is a statute that exempts the successors from inheriting the liabilities based on their good faith, the Supreme Court construed the good faith statue in a very narrow manner. The only exception to the Supreme Court’s lenient opinion are the cases of administrative fine imposed to the split company by the Korea Fair Trade Commission. The Supreme Court’s current position on the succession of liabilities in administrative sanctions is an exercise of excessive judicial activism and is dangerous given the punitive nature of administrative sanctions, and its threat to constitutional principles and the fundamental rights of citizens.