과징금의 법적 성격과 사용처의 관련성 - 공정거래법상 과징금을 통한 피해자구제 가능성을 중심으로 -

This article aims to address the problems of the current penalty surcharge system, where surcharges are allocated to the national general account, and to propose solutions for improvement. While penalty surcharges were originally introduced to confiscate unfair economic gains from violators of administrative laws, their nature has gradually shifted to an emphasis on punishment. However, they still retain their original function of recovering unjust enrichment. Finding the right balance between these two characteristics is crucial for the proper operation of the penalty surcharge system. It is argued that if penalty surcharges possess the characteristic of unjust enrichment recovery, they should ideally be used to compensate the victims of the violations. This aligns with the state’s duty to protect rights under the principle of the rule of law and can also reduce the risk of violating the principle of double jeopardy. In practical situations where individuals, especially numerous victims with minor damages, find it difficult to seek compensation through litigation, the state’s collection of penalty surcharges to compensate victims is both justifiable and necessary. A practical method for using penalty surcharges for victim compensation is the establishment and operation of a victim relief fund. A fund is a suitable system for this purpose as it allows the state to manage specific finances flexibly. Precedents already exist for funds financed by penalty surcharges, and it is assessed that the legal requirements under the National Finance Act can be sufficiently met. However, further work is needed to address potential issues, such as determining the portion of surcharges that corresponds to unjust enrichment, the possibility of double compensation, and specifying the scope of victims. Penalty surcharges should not be merely a means of securing national revenue. They should play an active role in protecting and compensating victims of administrative law violations. By establishing and operating a victim relief fund financed by penalty surcharges, the system can contribute significantly to upholding the rule of law and social justice. In the future, in- depth discussions on the specific operational plans, management entities, and victim selection criteria for the fund are needed to further develop the system.