Research Report
A Study on the Legal System of the Surcharge System
Ⅰ. Background and Purpose
▶ Request for legal review on general expansion of the surcharge system under statutes
○ Monetary sanctions under the name of surcharge include disciplinary surcharges and sanction surcharges. As can be seen in the terms of disciplinary surcharges, surcharges shall be collected within five times the amount of the relevant money, embezzlement, etc., in addition to disciplinary actions for misappropriation of public funds, embezzlement, acceptance of bribes, etc. by public officials; and sanction surcharges shall be collected by adding money not exceeding five times the relevant amount in addition to the recovery of subsidies, contributions, research expenses, etc..
○ Disciplinary surcharge was first established and expanded in the State Public Officials Act and the Local Public Officials Act in 2010, and with the enactment of the Improper Solicitation and Graft Act in 2015 and the Act on the Prevention of Conflicts of Interest Related to Duties of Public Servants in 2021, an institutional basis similar to the purpose of disciplinary surcharge has generally been expanded.
○ Since the first establishment of the Industrial Technology Innovation Promotion Act in 2011, with the enactment of the Act on Prohibition of False Claims for Public Funds and Recovery of Illicit Profits in 2019, the sanction surcharge system was introduced as general provisions in the same Act, making it possible to impose sanctions surcharges following the Act on Prohibition of False Claims for Public Funds and Recovery of Illicit Profits even in individual laws that do not separately stipulate sanctions surcharges.
○ The surcharge systems are monetary sanctions that have a significant influence on the rights and obligations of the people, but, unlike other monetary sanctions, academic discussions or legislative discussions on legal nature and allowable limits are insufficient, so overall research on the surcharge legislation is necessary.
▶ Need to study legislative improvement measures such as legal system improvement for the surcharge system
○ Since the surcharge system was regulated an indivicual Act and then expanded to the general laws, problems of applicabilities of surcharge provisions in an individual Act and in the general laws can arise.
○ Therefore, it is necessary to review the legitimacy and effectiveness of the content of individual legislation governing disciplinary surcharges and sanction surcharges, as well as separately examine how to view the relationship of the surcharge system between the general laws and individual laws.
- It is necessary to examine the overall surcharge systems, focusing on the relationship between the State Public Officials Act, etc., and Improper Solicitation and Graft Act, or Act on the Prevention of Conflicts of Interest Related to Duties of Public Servants when it comes to disciplinary surcharge; and the relationship between the Subsidy Management Act, etc. and Act on Prohibition of False Claims for Public Funds and Recovery of Illicit Profits when it comes to saction surcharges.
- Based on this, it is necessary to comprehensively review whether the imposition of surcharges is adequately regulated in terms of legitimacy and effectiveness and the appropriateness of the legal system governing the imposition of surcharges, and to study which part needs to be improved.
○ Legislative research is needed to establish legislative standards to reasonably introduce the surcharge system by comprehensively reviewing the legal nature and limitations of the surcharge systems and to specifically derive improvement measures to supplement the current surcharge systems and the legal system.
▶ Purpose of the research
○ The purpose is to specify matters to be considered in the legislation of the surcharge systems based on the need to contribute to the overall system establishment of the surcharge system by reviewing the system comprehensively and systematically and the nature of the surcharge system introduced to secure the effectiveness of the sanctions
○ The purpose is to identify problems by reviewing the current status of the introduction of the surcharge systems under the current laws and regulations and its effectiveness and to suggest the direction for legal system reform and improvement throughout the surcharge systems through this research
Ⅱ. Main Content
▶ Background of the introduction of the surcharge system and the current status of legislation
○ Since the surcharge system was specially recognized in the fields of public officials-related laws and subsidies-related laws when it was newly established in individual laws, the surcharge system introduced in the actual law was analyzed by summarizing the legislative background and the legislative process at the time of the establishment of the system.
○ In addition to the individual laws that introduced disciplinary surcharges and sanction surcharges, discussions in the process of introducing general laws with similar purposes led to the expansion of disciplinary surcharges and sanction surcharges systems, and as a result of the discussion, the overall analysis of the current legal system related to disciplinary surcharges and sanction surcharges was presented.
▶ Legal problems and improvement measures of the disciplinary surcharge system
○ As a result of analyzing the entire individual law that introduced the system under the name of disciplinary surcharge, the disciplinary surcharge was introduced as a separate form of disciplinary punishment from disciplinary action under the Public Officials Act. However, it is not appropriate as a disciplinary punishment in that the disciplinary surcharge is not a sanction on status, but a property sanction, and the fact that the subject of the disciplinary surcharge is being expanded to those who are not public officials is not in line with the nature of the disciplinary punishment. In addition, it is necessary to review the actual benefits of separating the disciplinary surcharge from the disciplinary action.
- Although the current system has the advantage of being able to deal with disciplinary disposition and disciplinary surcharge separately, other problems may arise that it is difficult to comply with the principle of proportionality in the process of discretionary exercise and that the procedure for remedy for rights is complicated.
○ On the other hand, in the Improper Solicitation and Graft Act, illegal solicitation by public officials are mostly subject to administrative fines, and disciplinary surcharges and fines are selectively imposed under the State Public Officials Act stipulates, which makes the legal nature of disciplinary surcharges is ambiguous and confusing. If there is no particular need to independently stipulate disciplinary surcharges as disciplinary punishment, it is necessary to consider an apparent reorganization such as integrating disciplinary surcharges under individual laws and monetary sanctions under the Improper Solicitation and Graft Act.
○ If it is necessary to keep disciplinary surcharges as disciplinary punishment, it is possible to consider to simplify disciplinary surcharges to as discipline to ealize the details of the imposition of disciplinary surcharges because the integration of disciplinary punishmen and disciplinary action, and if there is a little practical benefit to keep them as one of the disciplinary actions, it is necessary to consider to delete the provisions of individual laws such as the State Public Officials Act and requiring them to be subject to administrastive fines under the Act on the Improper Solicitation and Graft Act.
▶ Legal problems and improvement measures of sanction surcharge system
○ As a result of reviewing individual laws governing sanctions surcharges, it is necessary to review the imposition of sanctions surcharges except for financial relevance, the purpose of the introduction of sanctions surcharges, given that it is necessary to be cautious in expanding the reason for or subject of the imposition.
- Among the sanction surcharges, those that are being expanded to be subject to the imposition of sanction surcharges in laws, including the National Research and Development Innovation Act, etc., are required to be amended.
○ In the case of sanction surcharges, the term "sanction surcharges" is used as it is in the Act on Prohibition of False Claims for Public Funds and Recovery of Illicit Profits and there is no significant difference in the legal nature, so there is no systematic problem such as those of disciplinary surcharges. However, it is necessary to unify the term as a whole given that it is difficult to distinguish it from a system that is the same as sanctions surcharges but does not use the term sanctions surcharges.
○ In the case of sanction surcharges, some parts inevitably cause problems in interpretation between individual laws and general laws, such as exclusion of application, reduction or exemption, and level of imposition, in relation to the individual laws and the Act on Prohibition of False Claims for Public Funds and Recovery of Illicit Profits, so if it is not necessary to clearly organize these parts and separately regulate them in the individual laws, it is necessary to consider integration or adjustment based on Act on Prohibition of False Claims for Public Funds and Recovery of Illicit Profits.
▶ Legislative improvements throughout the surcharge system
○ As a result of insufficient discussion at the time of introducing disciplinary and sanction surcharges in individual laws or in the process of becoming general laws, the overall legal system related to surcharges has become confusing, so it can be said that it is necessary to improve the legal system throughout the surcharge system.
○ In addition, although the term surcharge is used equally for disciplinary surcharge and sanction surcharge, the use of the common term surcharge should also be considered in that the current legal system legislates different systems in terms of their characteristics.
○ In addition, the legislative structure that allows the imposing agency to determine the cause or level of imposition of surcharges extensively in legislation that regulates disciplinary surcharges and sanction surcharges is not appropriate not only for the legislator's obligations but also for securing the effectiveness of enforcement, so it is necessary to advance the overall discipline of the surcharge system in the future.
Ⅲ. Expected Effect
○ By discussing the legal nature and limitations of surcharges under the actual laws and establishing a system for surcharges, it can be used as a reference for research on theories related to monetary sanctions.
○ Contribution to the legislative and institutional improvement of related legislation by presenting legal issues for the surcharge system and proposing the direction of legislative reorganization.