공정거래법상 과징금의 법적 문제

The South Korea and Japan are the unique country to controll the company with surcharge system. Japan made the surcharge system in 1977 for the first in the world, and our country imported it in 1980. But Korea and Japan have had some difficulty with the legal character of surcharge since the legislation of it. Nowadays, the theory of unfair profit redemption is usually agreed in Japan. That means that Japan could manage the problems of the double and excessive regulation with the denial on the surcharge's legal character of penalty. Namely, the subject of surcharge is the natural busuness man in case of personal illegal behaviors, and the legal person in case of illegal behaviors of companies. And the subjective behaviors of imposed surcharge are restricted in some cases that limit the consideration of service or actually the suppling quantities of articles of commerce. That means that the personal monopoly or unfair trade method are not the subjects of surcharge. In Germany, only the fines for default are imposed to the person having the illegal behaviors by Art.38 German Anti-Trust Act(Gesetz gegen Wettbewerbsbeschränkungen: GWB). To compare with Japan, the surcharge systems of Korean Fair Trade Act is used to get the punitive effects besides the unfair profit redemption. In order to resolusion of these problems, we need to improve the surcharge system of the Fair Trade Act.