“Act on Public Order Violations Should Be Reviewed”
After being given advance notice by the Ministry of Justice on January 25th, 2005, the National Human Rights Commission of Korea reviewed the Act on Public Order Violations and presented its opinion on the Act saying that “the Act did not reflect the aim to enact a general law on fine imposition and hence it would be desirable for the Ministry to review the Law”.
NHRC decided to begin its investigation on the Act because it acknowledged the importance of enacting a general law to not criminalize persons for minor offences against administrative obligations. However, the Act would have room to excessively restrict the basic rights of the general public by only emphasizing efficiency of the fine imposition and collection procedure. For example, the Law: (1) provides the maximum amount of 30 million won for a fine of negligence, (2) not only gives tax officials tax audit powers to impose on and collect a fine, but also to impose another fine if a person refuses to cooperate with the audit, and (3) stipulates that the person who has not paid his/her fine limits his/her chances of receiving government contracts, (4) allows the reporting of delinquency to credit information providers, and (5) the person can be physically detained.
As a result of the investigation done by NHRC,
1. providing the maximum amount of a fine up to 30 million won
Rather than criminal and administrative procedure codes, authorities should decide on the amount of the negligence fines considering the extent of the amount does not violate fundamental rights, NHRC concluded:
(1) The maximum amount of 30 million won violates the law guaranteed under the Constitution,
(2) Rather than fixing the maximum amount, a variety of ways should be employed, including allowing for case-by-case decisions according to whether it is an individual or corporation and the extent of the economic gains resulting from the violation.
2. Granting power to audit taxes and impose fines
Granting power to conduct tax audits at the convenience of fine imposition is not reasonable because the power should be granted after an alleged violation proves true as a result of an official probe into whether a person failed to fulfill his/her obligations.
Also, imposing an additional fine of less than 5 million won based on the fact that the person refuses a tax audit which does not violate any administrative obligations, is an infringement of the law.
3. Limiting chances of getting government contracts
The Ministry of Justice demands that to collect overdue fines, a person who can afford to pay fines should be banned from receiving government contracts and current contracts will be suspended or canceled.
However, a compulsory fine collection is already guaranteed under the National Tax Collection Law. Therefore, banning the concerned person from doing government businesses violates the law.
Accordingly, the introduction of this part should be done in a prudent manner. Banning the person concerned from government business can be allowed only when the person maliciously delays paying a fine after he/she made excessive economic gains through a grave violation of his/her duty.
4. Opening overdue payment data to credit information providers
Article 53 of the Law allows information on negligence to be sent to credit information providers stating the method and criteria of the information provision should be in accordance with National Tax Collection Law. However, it would be very difficult to place the duty to pay a fine on the same footing with the duty to pay taxes which was prescribed in the Constitution. Moreover, National Tax Collection Law does not provide the criteria for the amount of overdue taxes which raises a question of constitutionality.
Therefore, when allowing the data to be open to credit information providers, (1) the authorities should remove the possibility of unconstitutionality, (2) come up with its own concrete criteria to minimize the violation of privacy, and thereby (3) guarantee the right to know so that the person concerned should be given notice prior to his/her data being given to credit information providers.
5. Introducing detention system
The detention system refers to physical detention to force a person to pay his/her overdue fine. The Justice Ministry explains the system has been established to induce the person concerned to pay a fine through the detention system. However, the system violates personal freedom, an important right under the Constitution. Therefore, (1) the system should be limited for the public interest to a certain administrative area, (2) even in cases where used, grounds for doing so should be concretely stated in the Act in accordance with the principle of protection of fundamental rights equivalent to criminal procedures (the principle of legality, the principle of due procedures, and the right to a trial).
Therefore, NHRC concluded that the Law is incomplete without reflecting an objective of a general law not to criminalize minor offenses against administrative obligations. The articles of fine imposition and collection would also restrict the fundamental rights of the general public. Thus, NHRC presented its opinion that the Act should be further reviewed.
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