행정조사를 위한 디지털증거 수집의 적법성 강화 방안 : 공정거래위원회를 중심으로 :

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자료유형: 학위논문

저자정보: 강승훈 (서울대학교, 서울대학교 대학원)

발행연도: 2019

저작권: 서울대학교 논문은 저작권에 의해 보호받습니다.

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2019

행정조사를 위한 디지털증거 수집의 적법성 강화 방안 : 공정거래위원회를 중심으로

강승훈 수리정보과학과 2019.01 학위논문

공정거래위원회의 디지털증거 수집의 적법성 강화 방안

강승훈 경쟁법연구 2019.01 학술저널

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정보 기술의 발달과 고도화로 인하여 행정기관의 행정조사 대상이 종래의 유체물에서 디지털증거로 급속히 대체되고 있다. 이러한시대상황에 발맞추어 행정조사권한을 보유한 여러 행정기관은 앞다투어 디지털증거 수집을 위한 절차 및 기준을 마련하고, 관련 업무를 전담할 조직을 설치해오고 있다.공정거래위원회는 공정거래법에 의한 사무를 독립적으로 수행하
는 합의제중앙행정기관으로서 경쟁법 위반행위의 조사 및 심의를 통하여 스스로 법 위반행위를 선언하고, 과징금 부과 및 검찰 고발 등의 조치를 할 수 있는 권한을 보유하고 있다. 공정거래위원회는 사건처리절차 상 효율적인 법 위반행위 적발을 위해 디지털증거의 수집을 통한 조사영역을 확대하여 왔다. 행정조사를 위한 디지털증거의 수집 행위는 디지털증거의 특성으로 인하여 종래의 유체물을 대상으로 하는 조사행위 보다 국민의 권리와 자유를 침해할 높은 가능성을 가지고 있다. 따라서 그 행위는 적법하고 적정한 절차에 따라 통제되어야 한다. 본 연구는 행정기관 중 공정거래위원회의 디지털증거 수집 절차가 적법하고 적정한 절차에 따라 운영되고 있는지에 대한 문제의식을 가지고 출발하였으며, 연구 결과 독점규제 및 공정거래에 관한법률 및 관련 법령 하에서 제기될 수 있는 문제점을 아래와 같이인식하였다. 첫째, 현행 법제 하에서 공정거래위원회가 행하고 있는 디지털증거 수집절차는 작용법적인 근거가 미약하여 헌법상 보장된 적법절차 원칙에 위배될 소지가 있다고 판단하였다. 둘째, 공정거래위원회 심의절차 상 제출된 디지털증거자료의 증거조사절차가 실질적으로 이루어지지 않고 있는 점은, 공정거래위원회가 사실상 경쟁법 집행에 있어 1심 법원의 역할을 수행하고 있는 준 사법기관의 성격을 가지고 있음을 감안한다면, 실질적 법치주의 혹은 재판청구권의 보장이라는 헌법상 원칙에 위배될 수 있다고 판단하였다. 이러한 문제점을 인식하여 공정거래위원회의 디지털증거 수집 절차의 적법성을 강화하기 위한 방안으로 첫째, 공정거래위원회의 디지털증거 수집 행위에 필요한 법적 근거 중 본질적인 사항은 법률로서 상향하여 제정할 것과 둘째, 공정거래위원회의 심의절차상 디지털증거의 증거조사 절차를 강화할 것을 제시하였다. 본 논문은 공정거래위원회의 디지털증거 수집 행위의 의미 및 성격을 확인하고 그에 따라 갖추어야 할 작용법적인 요건 및 제반절차를 제시함으로써, 조사 대상자의 절차적 방어권을 보장하고, 공정거래위원회 법집행 측면의 적법성을 강화하였다는 데에 그 의미가 있다.

Due to the development and advancement of information technology, a object of administrative investigation is rapidly being replaced by digital evidence from material things. In response to this situation, several administrative agencies with authority to conduct administrative investigation have set up procedures and standards for collecting digital evidence, and have established an organization dedicated to the related tasks.
The Fair Trade Commission(FTC) is a collegiate governmental authorities that independently conducts affairs under Monopoly Regulation and Fair Trade Act(MRFTA) through the investigation and deliberation of the violation of MRFTA. It declares itself to be in violation of the law and has the authority to impose fines and prosecute prosecutions. FTC has expanded the scope of investigation through the collection of digital evidence in order to detect cases of law violations more efficiently in case processing procedures. Due to the characteristic of digital evidence, collecting digital evidence for administrative investigations is more likely to
infringe on the rights and freedoms of the people than the investigations of material things. Therefore, the conduct should be controlled according to lawful and due process. This study started with the consciousness of the issue of whether FTC''s digital evidence collection procedure is operated through due process of law. As a result, it can be raised under the existing laws and related regulations, I recognized the problem as follows.
First, under the current legal system, the procedure of collecting digital evidence by FTC is judged to be in iolation of the due process principle guaranteed by the Constitution because it is not conducted in accordance with a legal basis. Second, considering that FTC has a role as the first instance court, the point that examine of evidence for digital evidence presented in the deliberation process of FTC is not practically achieved can be contrary to the constitutional principle of guaranteeing the right of access to courts. Recognizing these problems, I suggest to strengthen the legitimacy of the digital evidence collection process of FTC asfollows.
First, the essentials of the legal basis for collecting digital evidence of FTC should be enacted as laws. Second, the FTC''s deliberation procedure should strengthen the procedures for examine of evidence for digital evidence.
The purpose of this paper is to verify the meaning and nature
of the digital evidence collection activities of FTC and to
provide the procedural requirements and procedural procedures.
As a result it is meaningful that the legality of FTC
enforcement is strengthened.

#공정거래위원회 #행정조사 #디지털포렌식 #디지털증거 수집 #공정거래위원회 심의절차 #증거조사 #디지털증거의 증거능력 #행정처분의 절차상 하자

목 차
제1장 서론··································································································1
제1절 연구의 목적 ··················································································1
제2절 연구의 범위 및 방법 ··································································2
제2장 디지털증거의 특성 ········································································5
제1절 디지털증거의 개념 ······································································5
제2절 디지털증거의 특성 ······································································6
1. 매체독립성·······················································································6
2. 변조용이성·······················································································7
3. 전문성 ·······························································································7
4. 비가시성 및 비가독성···································································8
5. 대량성 ·······························································································9
6. 복원성 ·······························································································9
제3절 디지털증거의 증거능력 ····························································11
1. 진정성 ·····························································································12
2. 신뢰성 ·····························································································12
3. 무결성 ·····························································································13
제4절 디지털증거 수집의 유형 ··························································14
제3장 형사절차상 디지털증거의 압수?수색 ····································17
제1절 형사소송법 제106조 제3항 ······················································17
1. 압수?수색의 대상 ·······································································17
2. 유관정보의 수집···········································································19
3. 예외 판단의 기준 ·········································································22
제2절 압수?수색 집행 과정에서의 적법절차 원칙······················24
1. 참여권 보장 ···················································································24
2. 반출한 저장매체의 반환 및 무관정보의 삭제·······················26
3. 압수한 전자정보의 상세목록 교부···········································29
제3절 위법한 압수?수색 집행의 구제 수단··································30
1. 준항고 ·····························································································30
2. 위법수집 증거배제원칙·······························································31
제4장 공정거래위원회의 디지털증거의 수집 ····································33
제1절 공정거래법위원회의 조사의 의의 및 성격 ··························33
1. 공정거래위원회 연혁 ···································································33
2. 공정거래위원회의 법적 지위 및 권한 ·····································34
3. 공정거래법상 조사의 의의 및 법적 성격 ·······························37
제2절 공정거래위원회 디지털증거 수집 법제의 검토 ··················40
1. 공정거래법상 디지털증거 수집 ·················································41
2. 디지털증거 수집 및 분석에 관한 규칙···································43
3. 디지털증거 수집의 법적 성질 ···················································48
4. 공정거래위원회 디지털조사의 한계·········································49
제5장 현행 법제 하에서 공정거래위원회 디지털증거 수집의 문제점···· 53
제1절 사전적 통제절차의 적정성 검토············································53
1. 영장주의의 적용···········································································53
2. 디지털증거 수집행위의 작용법적 타당성·······························56
제2절 사후적 구제수단의 검토 ··························································59
1. 항고소송을 통한 구제·································································59
2. 공정거래위원회 심의절차 상 증거 조사의 문제점 ··············· 65
3. 위법하게 수집한 디지털증거자료에 기반한 처분의 효력·········· 69
제6장 적법성 강화방안··········································································72
제1절 본질적 사항의 법률로의 제정 ················································72
1. 디지털 증거수집의 방법 및 대상············································· 72
2. 디지털증거수집 절차상 절차적 권리의 보장 ························· 75
제2절 공정거래위원회 심의절차상 디지털증거의 증거조사 반영···77
제7장 결론································································································81
참고문헌 ····································································································83
Abstract ····································································································89

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