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As per the development and advancement of information technology, an administrative investigation of alleged antitrust cases has been replaced by digital evidence examined by a competition authority. In response to this situation, several administrative agencies have implemented standards and procedures that have the authority to investigate companies in accordance with laws and regulations, collected digital evidence, and established related organizations.

The Korea Fair Trade Commission(KFTC) is a ministerial-level central administrative organization that independently executes the objectivity of the Monopoly Regulation and Fair Trade Act(MRFTA) by pertaining scrutiny of the violation of MRFTA. They have the right to impose fines and referral rights. The KFTC has expanded the scope of its investigation by actively collecting forensic evidence to preserve the value of evidence.

Due to the characteristic and the potential quantity of digital evidence available, collective digital evidence for administrative investigation purposes is highly likely to infringe on privacy, human rights and freedom of people that are protected under the Constitution. Accordingly, such conduct shall ensure the due process and be lawful.

This paper questions whether the KFTC’s forensic review procedure guarantees the due process under the Constitution. The answers are as follows:

First of all, under the current legal system, the KFTC’s forensic review procedures violate the due process under the Constitution. Because there is no legal basis.

Second, because the KFTC is the court of first instance, the investigation of digital evidence in the course of deliberation process is not successful. This may also be unconstitutional in terms of access to the court.

Therefore, this paper suggests two methods to promote the legitimacy of digital evidence:

First, a law authorizing the KFTC to review forensic practices shall be promulgated.

Second, KFTC should enhance the legitimacy of the forensic review at the level of deliberation procedure.

The purpose of this paper is to validate the significance and nature of KFTC forensic validation activities that collect digital evidence and to propose several procedural requirements.