전속고발제도에 대한 소고 -공정거래위원회가 고발하지 않은 자에 대한 기소 문제를 중심으로- = Personal Opinion on the Exclusive Authority of the KFTC for Filing Complaints to Prosecution -Regarding issues of prosecuting persons not accused by the KFTC-

다국어 초록 (Multilingual Abstract)

Recently, the matter of prosecuting business enterprisers or executives that the Korea Fair Trade Commission(KFTC) decided not to file complaints for prosecution considering their status as leniency applicants is becoming an issue. The ground on which the KFTC exempts criminal accusation despite the violation of competition act can be found in the article 71 of the Monopoly Regulation and Fair Trade Act(the MRFTA). It endows the KFTC with the exclusive authority for filing a complaint to criminal prosecution on violation of the MRFTA. In the case of breaching the MRFTA, it is desirable to have the KFTC continuously fulfill the sole responsibility of criminal accusation considering its speciality in economic law area. Using the specialty, the KFTC conducts detailed market analysis. Therefore, it is desirable to have the KFTC, on the base of this economically professional analysis, to judge whether to apply administrative measures or bring the case to prosecution. It also practically fits to the principle of equity and to the intent of legislators of the MRFTA to judge case by case whether to criminally accuse or not. And the decision should be made after thoroughly reviewing motives of violation, influence to the market, degree of involvement to the breach, whether or not voluntarily correcting the illegal activities, degree of cooperation to the investigation, and so on. These days, it is becoming increasingly difficult to detect cartel activities not only because it is carried out secretly but also because it uses more high-tech and intelligent methods. Foreign competition agencies, including the U.S. and the EU, exempt leniency applicant from criminal or administrative measures, and even allow them to take limited responsibility in civil suit. Therefore, it would be better to stipulate in the MRFTA that leniency applicants are exempted from criminal charges. This will be a legal solution to finish arguments surrounding the exemption of leniency applicant from criminal accusation.