경제규제 영역에서의 독립행정위원회의 기능과 역할

초록

In this paper, the Fair Trade Commission which carries out important tasks and functions as an independent regulatory committee for economic order is reviewed from the perspective of independence and accountability. Since the Korea's FTC is a central administrative agency under the Government Organizational Act, it would be not easy to evaluate it as an independent regulatory committee in a strict sense (with independence from the government as a conceptual sign). However, the reason why the FTC's independence is emphasized is that the consistency and continuity of competition law enforcement must be guaranteed due to the nature of its work to regulate economic order and the deliberation and resolution(adjudicative function) to deal with the violations of competition laws should be fair and neutral. To this end, the origin, significance, and nature of the Independent Regulatory Committee was examined and the legal issues raised about the constitutional principle of separation of powers were reviewed to demonstrate constitutionality. Today, it is possible to overcome the classical theory of separation of powers and establish the FTC in the form of an independent regulatory committee from a functional and dynamic perspective of separation of powers, and to clarify that it is constitutionally justified for rational regulation of economic order and smooth enforcement of competition laws. To secure the independence and accountability of competition authorities, we reviewed the competition laws of major countries from a comparative legal point of view to see how competition authorities are organized and operated while maintaining a distance between the parliament and the administrative bodies and the presented measures to secure human and technical independence, such as guaranteeing the organization or composition of the Fair Trade Commission, members' status, and the terms of office. There is no single model or answer for the ROK’s Fair Trade Commission to properly perform its function and role as an independent regulatory committee. Even the affiliated organizations of the administration, like Germany, may be allowed to work in lifetime positions to completely cut off external influence while judicial supervision and control of dispositions and procedures. We may adopt mechanisms that secure accountability for Congress instead of guaranteeing independence from the administration ike the United States of America. And it should be considered that personnel and financial independence, although not covered in detail here, is also an important factor in securing the FTC's independence. Securing independence across the FTC's organization, composition, operation, and procedures is an essential prerequisite for the proper enforcement of competition laws. Through the revision of laws and regulations, specific issues that implement the principles of due processing and guarantee the defendant's right to defend themselves should be gradually resolved through the revision of laws and regulations and the improvement of system operations. Additionally, because the FTC's handling of cases in Korea is significantly larger than that of competitive authorities in other countries, attention should be paid to relieving the burden through selection and concentration. To restore a fair and free competitive order, the FTC should fundamentally improve the organizational composition and business procedures by promoting the correct realization of competition laws on the one hand and establishing reasonable relationships with the parliament and the government on the other.

키워드