경쟁법상 부당한 공동행위의 형사처벌에 따르는 법리적 쟁점

Criminal punishment for cartels began with Article 1 of the U.S. Sherman Act, which has set a strong antipathy against cartels and monopolies at the time of the enactment of the Act. Against this backdrop, the so-called ‘conspiracy-centered approach’ was adopted. Specifically this approach could be explained as as ‘agreement’-oriented components that do not take into account their implementation or the consequences of implementation, a prohibition that is not exceptionally permissible, and strong criminal sanctions that include jail terms for individuals involved. On the other hand, the circumstances behind creating competition laws for the EU community and its members are clearly distinct from those of the United States. That is, in the background of the lack of experience in moral criticism of cartels, the EU Community and Member States Competition Law has adopted an administrative-regulatory approach, which has centered around specialized regulators, to determine whether an agreement is prohibited by combining “effects or consequences” with the agreement itself. Fines, administrative sanctions, have played a major role in enforcement. However, the introduction or reinforcement of criminal sanctions to enhance the effectiveness of cartels’ regulations is being noticeable due to the strengthening of awareness of problems with international cartels in the 1990s and the global spread of the leniency program that began successfully operating in the U.S. Currently, 12 countries among EU member states enforce criminal sanctions against cartels, while others, Canada, Australia, Brazil, Israel, Mexico and South Korea, do so. Many of these countries have adopted or strengthened them through legal revisions since the 2000s, showing a distinct tendency toward so-called “criminalization.” And in Korea, this trend is felt in the discussion surrounding the abolition of the “exclusive accusation system”. In the case of Korea, the exclusive accusation system could be said to have been an institutional mechanism that allowed criminal sanctions to exist in a coherent manner within the framework of administrative regulation, and thus mitigated legal and procedural problems that followed criminal sanctions to some extent. In other words, an independent regulator with expertise in the Fair Trade Act has been, to some extent, restraining the problems arising from the presence of both administrative and criminal enforcement by leaving the right to decide whether or not to initiate criminal enforcement. In particular, criminal punishment of the individual involved had been supported in the light of strengthening the deterrent effect without due consideration of its legal implications, and it is thought that critical review of it from the criminal law, particularly the question of ambiguity of the subject and the substance of legality, could never be omitted. It can be expected that the recently discussed abolition of the exclusive accusation system will bring about significant changes to the existing cartel’s enforcement system, that, among other things, the criminal procedure of administrative procedures cannot rule out the possibility of fundamentally changing the relationship between regulators and undertakings under competitive law, and that the benefits of enhancing the deterrent effect may not be significant due to the increase in regulatory costs associated with criminal procedures.

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