보험산업에 대한 공정거래법 적용의 범위와 한계- 대법원 2006. 11. 23. 선고 2004두8323 판결을 중심으로 -

Insurance business is one of the most regulated industries. Along with recent deregulation over financial business practices since late 1990's, there started to emerge the issue of insurance cartels, especially regarding premium and additional services. Cartels by insurance business can be exempted from application of the Monopoly Regulation and Fair Trade Act(the "Act") if it satisfies requirements prescribed at Section 58 of the Act; it privides, under the title of "Legitimate Actions Taken Pursuant to Acts", that the "Act shall not apply to the proper practices of an Enterprise or Trade Association conducted in accordance with any act or any decree to such act". In order to become "proper practices", academia and case laws agree that the questioned practice should be characterized one of the necessary and least competition-restrictive practices within the meanings of laws or orders pursuant to the laws, and such laws or orders should be such that actively admit exceptions to free competition. Section 125 of the Insurance Business Act is known to be one of the above exceptions; it provides, "Insurance business should get approval by the Financial Services Commission, as accorded by the Presidential Decree, when it starts cartels regarding its business by means of mutual agreements together with other insurance businesses". In analyzing above provisions together with the spirits of the Insurance Business Act, some argue that the scope of such exemptions should be interpreted more widely than express words so that most practices by insurance business be exempted from the application of the Act, when considering special characteristics of the industry that require cooperative activities among businesses and wide government regulation. I argue that, however considering the words of relevant legal provisions, case laws, and precedents of foreign countries, above exemptive provisions should be narrowly interpreted, close to the cases of McCarran-Ferguson immunity and state action doctrine in United States. As a result, an agreement among insurance businesses to stop collectively offering free emergency services to car insurance policy holders should not be exempted from the application of the Act, since existing mutual agreements among insurance businesses ddi not include such a cartel and therefore it did not fall on either the meaning of the Section 125 of the Insurance Business Act or Section 58 of the Act. Moreover, the agreement was clearly harmful to consumer interest since it removed free gift to policy holders without any remuneration. If above cartel to stop emergency services was expressly compelled by regulatory authority in a form of administrative guidance, however, I argue that sanctions could be lessened or even exempted in proportion to the degree of regulatory force even if there was no government's formal orders, because one could not expect the businesses not to follow such compelling guidance unless it was illegal by its face. Such administrative guidance, however, should not be actively used.