공정거래법의 형사적 집행절차의 주요 쟁점– 실무상 쟁점을 중심으로

The Monopoly Regulation and Fair Trade Act (“MRFTA”) has a notable feature from a comparative law perspective in that it stipulates criminal penalties for each type of violation. Nevertheless, historically, criminal enforcement procedures in the field of antitrust has relatively lacked attention. Recently, with the increase in investigations and prosecutions by the prosecution for violations of the MRFTA and the introduction of criminal penalties for acts obstructing investigations, the overall burden of criminal penalties on companies and individuals has escalated. In this context, there is a growing need to review the problems arising from the current investigations conducted by the Korea Fair Trade Commission (“KFTC”) and to consider potential institutional improvements. The criminal enforcement procedure for the antitrust begins with the administrative investigation by the KFTC, where the materials collected through the KFTC’s administrative investigation are used as key evidence in the criminal enforcement process. Additionally, the KFTC’s significant influence is evident throughout the procedure, as a formal complaint by the KFTC is required for the prosecution to file charges. This unique characteristic of the antitrust criminal enforcement procedure inevitably brings a practical challenge of seeking an appropriate balance between the procedural defense rights of the investigated and administrative efficiency in the enforcement of the MRFTA. The existing regulations on the obstruction of antitrust investigations under the MRFTA and the KFTC's exclusive indictment system are legislative outcomes seeking balance between these conflicting values. However, recent trends in the antitrust criminal enforcement procedures have shown practical changes that could significantly weaken the procedural defense rights of the investigated. These include the criminalization of obstructive acts in antitrust investigation, the prosecution's tendency to initiate investigations without the KFTC referrals in collusion cases, and the implementation of the prosecution’s independent leniency program. These recent trends in the antitrust criminal enforcement procedures, when viewed from a legal systemic perspective, risk fundamentally infringing upon the procedural defense rights of the investigated, potentially disrupting even the minimal balance required in the fair trade criminal enforcement process. Therefore, there is a significant need to devise institutional improvements to ensure the comprehensive implementation of the principle of due process throughout the procedure by adequately safeguarding the defense rights of the investigated at every major stage and issue of the antitrust criminal enforcement process. Firstly, it is necessary to impose the obligation to notify the investigated parties of their right to refuse testimony and to specifically define the scope of investigation in the procedures of the KFTC. Furthermore, it may be considered to deny the evidentiary power of materials collected in violation of due process during KFTC investigations in criminal proceedings. Additionally, the current reliance on the KFTC’s retrospective judgment to determine what constitutes obstruction of investigation should be improved by clearly defining the specific types and criteria for obstruction of investigation, possibly through public notices. Lastly, in response to the implementation of the prosecution’s leniency program for cartel activities, it is suggested to consider pre-information sharing procedures and an integrated voluntary reporting system between the KFTC and the prosecution to address practical issues arising from this.