감사ㆍ감찰상 비협조 행위에 대한 제재 제도의 문제점과 개선방안

Audit and inspection serve as essential mechanisms for ensuring the accountability and transparency of public institutions, as well as for identifying and addressing administrative problems. To ensure the effectiveness of audits and inspections, the current legal framework imposes criminal penalties (Article 51 of the Board of Audit and Inspection Act) or administrative disadvantages such as disciplinary measures (Article 32(1) of the same Act) in cases of refusal to comply with audits, failure to submit requested materials, or obstruction of audit and inspection processes. However, the current system of sanctions for non-cooperative conduct in audits and inspections, while focused on ensuring administrative efficiency, tends to neglect the protection of the rights of audited persons, including their right to defense, and thus requires reconsideration. First, Article 51 of the Board of Audit and Inspection Act, which imposes criminal penalties for non-cooperative conduct in audits, raises questions as to the necessity and proportionality of such penalties for achieving the purposes of audit. In this regard, it may conflict with the principle of subsidiarity of criminal law, and thus legislative revision should be considered to replace criminal sanctions with administrative fines. Another issue is that, the current provisions fail to clearly define the concept and scope of audit obstruction, resulting in excessive breadth that raises concerns regarding compliance with the principle of clarity. In addition, the uniform imposition of criminal penalties for such conduct does not conform to the principle of proportionality between responsibility and punishment and creates a risk of arbitrary enforcement by audit authorities. Accordingly, it is necessary to refine the regulatory framework by specifying and categorizing the types of conduct in greater detail and by differentiating between criminal sanctions and administrative fines, thereby enhancing the predictability for regulated parties and ensuring that liability is proportionate to the nature of the conduct. A different issue arises in that the imposition of a duty of cooperation without exception—even in situations where audit findings may lead to disciplinary action or criminal liability—and the imposition of separate sanctions for non-compliance restrict the right to defense of audited persons and may infringe upon the constitutional right against self-incrimination, including the right to remain silent, as well as the rights to personality and self-determination. Accordingly, institutional reform is required.d. Finally, the current audit system, which relies excessively on the voluntary cooperation of audited persons, requires fundamental reform. In this regard, it is worth considering the introduction of an administrative warrant system premised on judicial control.