1. administrative investigation against “violation of the law”
There is a dual regulatory system mostly against violations of the laws
in Korean administrative laws. In other words, not only administrative measures
or sanctions (permission cancellation, business suspension, improvement
orders, administrative money penalty, administrative fine for negligence
etc.) but also criminal penalties (imprisonment or fines) are imposed on
violations of the law. The exercise of administrative investigation right
by administrative agencies against “violation of the law” includes implicit
and explicit connectivity to criminal procedure inevitably in addition to
administrative measures and sanctions. Therefore, under our actual legal
system, which has a dual sanction system for violations of the law, the
exercise of administrative investigation rights against “law violations” - as
extremely arbitrary exercise of administrative power - will be hard to justify.
In short, administrative investigations against violations of the law should
be minimized as a potential investigation activity that could violate seriously
the basic rights of persons under investigation and could lead them to
criminal punishment in the future.
Investigation activity, that is criminal investigation activity, is an area
that investigative agencies (general investigative police and special investigative
police) should be in charge of. Examples of relevant legislation include
the 「 ACT ON THE MANAGEMENT AND PROMOTION OF REAL ESTATE
DEVELOPMENT BUSINESS」 (Article 21) and the 「FRAMEWORK ACT ON
EMPLOYMENT POLICY」 (Article 38). However, there will be no room for
controversy in the cases of a simple administrative investigation that the
administrative investigation against the violation of the law is not linked
to the criminal procedure.
Inevitably, due to the necessity of administrative purposes such as
accusation or investigation request to the investigative agency, even if the
administrative investigation against violation of the law is admitted, the
administrative agency must only check the formal factual relationship as
to whether it is a violation of the law. Also, administrative investigation
method should be limited to the minimum degree of investigation activity
by request for data submission to related public institutions.
On the other hand, another point to consider in legislation for administrative
investigations on violations of the law is that administrative public officials
are granted “special judicial police rights” in many areas. They should be
able to investigate against violations of the law through criminal investigation
2. System improvement in each individual law
(1) Provisions for the exercise of the right to investigate “when it is deemed
necessary for the enforcement of this Act” should be avoided. Also, it is necessary
to specify the scope of the exercise of the right to investigate. This is because
the scope of the right to investigateis an extremely abstract and arbitrary
conceptual element that can give excessively excessive investigation power to
the administrative officials concerned - including investigations to impose
criminal penalties. An example of the revision (2019) of the 「WASTE MANAGEMENT
ACT」 can be used as a reference.
(2) Individual administrative laws specifically stipulate the method of administrative
investigation. However, there are cases in which there are no regulations on the
specific method of administrative investigation or the regulations are unsystematic
(for example, Article 66 of the 「CHILD WELFARE ACT」). In the case of stipulating
the right of administrative investigation, it is necessary to stipulate the investigation
method in a specific and systematic manner.
On the other hand, in order to protect the basic rights of persons under
investigation, as a method for exercising the right to investigate, the “order to
submit related goods and documents”, which is a method that is relatively less
infringing on the basic rights of persons under investigation, should be prescribed
primarily. And, it is necessary to seek a plan to stipulate “field investigation”
secondarily only in cases where it is difficult to achieve the intended purpose
by “order to submit related goods and documents”(refusal of the primary
investigation method, etc.).
(3) “Reports” and “Investigations” are only different as administrative investigation
methods, and although they are essentially the same type of investigation, there
are cases where they are classified separately (「EMPLOYMENT INSURANCE ACT」
etc.). Since both are substantially the same, it is necessary to stipulate the
“reports” and “investigation” regulations in an integrated manner. This is because
the basic principles related to administrative investigations (prior notice, notice
of investigation results, etc.) are legislated or interpreted (or can be interpreted)
as not applicable in the case of “reports”.
(4) Most laws stipulate that “administrative fine for negligence” be imposed
as sanctions against acts such as interfering with the exercise of administrative
investigation rights. However, there are cases where severe criminal penalties
are stipulated as sanctions. Considering the nature and purpose of the administrative
investigation, the violation of the obligation to cooperate in an administrative
investigation corresponds to a failure to comply with the obligation to report
or to submit data, and the imposition of excessive criminal penalties is difficult
to recognize. Therefore - if there is no specific reason - it would be reasonable
to convert criminal sanctions for acts such as obstruction of administrative
investigations into administrative fine for negligence.
(5) In the case of an administrative investigation related to the investigation
of violations of the law, there is a high possibility that the statement in the
administrative investigation process will be used in criminal procedure, and there
is a high possibility that it violates the “right to refuse to make a statement”
(「CONSTITUTIONAL LAW」 Article 12 (2)). Therefore, the “right to question”
related to the administrative investigation of violations of the law needs to be
deleted or extremely limited. Even if it is admitted restrictively, it is advisable
not to prescribe sanctions against the exercise of the right to remain silent. In
addition, even if there are sanctions regulations, it is necessary to stipulate them
in a clear form so that they are not subject to sanctions if there are “justifiable
(6) There is no reason to believe that the “obligation to present a certificate”
is limited to the “field investigation”. In relation to administrative investigations,
if there is a procedure for face-to-face with persons under investigation, it is
necessary to stipulate certificate to be presented. In addition, if there is no
provision of the “obligation to present a certificate”, supplementation is necessary.
In addition, the “obligation to present documents” stating the purpose of
investigation - to ensure procedural guarantees - needs to be stipulated in all laws.
In addition, rather than partially stipulating the contents stipulated in the
「FRAMEWORK ACT ON ADMINISTRATIVE INVESTIGATIONS」 in each individual law,
or setting a rule that retreats from the 「FRAMEWORK ACT ON ADMINISTRATIVE
INVESTIGATIONS」, it is reasonable to take the following method: “… subject to
the provisions of the 「FRAMEWORK ACT ON ADMINISTRATIVE INVESTIGATION
S」 except for the matters prescribed in this Act regarding questions or
investigations related to the contents, procedures, and methods.”
(7) The “right to the assistance of a lawyer” needs to be defined in all areas
of administrative investigation. In particular, administrative investigations of
special administrative agencies - as stipulated by individual laws - can be said
to be an area in which the authority equivalent to criminal investigations is
exercised. Accordingly, there is a very high concern for infringement of the basic
rights of the people. This is because it is necessary to sufficiently guarantee the
right of the persons under investigation.
Under the current legal system that stipulates imposing sanctions on acts such
as refusal of administrative investigations, it is not reasonable to not recognize
the “right to receive assistance from lawyers”. In addition, in terms of protection
of the rights of the persons under investigations, the “right to receive assistance
from lawyers” stipulated in the “public notice” needs to be adjusted upward to
the “law”. And it is necessary to expand the scope of the rights, which is limitedly
recognized, to all inspection and investigation processes.
(8) Procedural guarantees for administrative investigations are very weak
compared to compulsory investigations in criminal proceedings (seizure and
search), so it cannot be admitted to allow infringement to the same extent as
compulsory investigations (criminal investigations) against acts that hinder
investigation rights. Therefore, the exercise of force for refusal of administrative
investigation by the other party should be strictly prohibited.
3. Improvement of administrative investigation by special
(1) Despite the fact that investigations of violations by the Financial Services
Commission or Fair Trade Commission etc. have a quasi-judicial nature that leads
to criminal prosecution through administrative investigations, strict procedural
regulations similar to criminal procedures have not been established. Provisions
for guaranteeing procedural rights for the examinee need to be stipulated in not
the “public notice” but the “law”.
(2) In relation to the performance of the labor inspector’s duties (exercise the
right to investigate) pursuant to Article 101 of the 「Labor Standards Act」, no
special provisions have been made on the procedural guarantee of the persons
under investigations. There is a need to prepare detailed regulations on the law.
With regard to the provisions of the labor inspector’s duties-related individual
laws, it is necessary to further specify the requirements for invoking his right
to investigate, and special provisions regarding the procedural guarantee of the
persons under investigations must also be prepared. In addition, sanctions against
“rejection of statements” or “false statements” need to be reviewed.
(3) The Financial Services Commission’s investigation of unfair trade is a highly
likely activity that can lead to criminal proceedings as a result. Therefore,
especially in this area, investigations should be proceed not administrative
investigations but criminal investigations. Even if it is conducted as an administrative
procedure, provisions for guaranteeing the procedure equivalent to that of the
criminal investigation activity must be prepared. In addition, deficiencies in the
provisions of procedural guarantees in individual laws related to the duties of
the Financial Services Commission should be improved.
(4) Although it is not an administrative agency, the Election Commission’s
regulations related to the investigation of election crimes (「PUBLIC OFFICIAL
ELECTION ACT」) may serve as a reference for improving the investigation activities
of special administrative agencies such as the Fair Trade Commission.