Duplicate Powers in the Criminal Referral Process and the Overlapping Enforcement of the Competition and Criminal Authorities in Korea: An Analysis Through the Lens of the Redundancy Theory

Abstract

In the context of the increasing exercise of criminal referral and enforcement rights for violations of Korean competition law, this paper analyzes and evaluates the rationality of various duplicates and overlaps within the law enforcement system. Specifically, it examines the redundancy theory introduced in public administration by Martin Landau, exploring the conditions under which functional or institutional redundancies in government organizations can operate rationally. This study then applies these insights to the current enforcement system, where multiple agencies hold referral (request) rights, and both competition and criminal authorities are empowered to enforce the law. The paper assesses whether this status quo represents a desirable institutional design.

The study concludes by identifying several negative excesses, particularly in (i) the criminal authority’s enforcement actions in areas beyond hardcore cartels, bid-rigging, tunneling, (ii) the reasons for exercising referral request rights, and (iii) the competition authority’s obligation to make criminal referrals. Based on these findings, it suggests that institutional and legal enhancements are necessary to reduce the level of the system’s redundancy to an appropriate and desirable level. Recommendations include narrowing the scope of criminal enforcement, refining the criteria for referral requests, and ensuring the competition authority’s decision-making independence.

Despite some limitations, this study makes a significant contribution to the theory of redundancy by extending the scope of research to the Korean competition law enforcement framework. Moreover, by adopting an administrative and managerial approach—rarely explored in competition law research—this study introduces a novel perspective and methodologies to the field of study of the Korean competition law. These, combined with the approach to drawing conclusions, are anticipated to offer valuable insights for evaluating other duplicates or overlaps in the Korean competition law in the future.