불공정거래행위의 사법상 효력

In studying the enforceability of unfair trade practices proscribed in Section 23 of Monopoly Regulation and Fair Trade Law (hereinafter “MRFTL”), its legal nature must first be examined. There are two main body of thoughts regarding the legal nature of unfair trade practices: one school of thought argues that unfair trade practices should be understood in the limited context as only those acts that harm competition while the other school of thought argues that unfair trade practices include not only anticompetitive behavior but also any behavior in which unfairness exists (even if such behavior is not necessarily anticompetitive). Between these two thoughts, currently, the latter is the majority view among scholars. As such, the discussion on the enforceability and the scope of unfair trade practices is closely related to the discussion of its nature. If we follow the second school of thought, unfair trade practices encompass both acts that restrict competition as well as acts that, although not anticompetitive, are nonetheless considered unfair. The latter acts can be further divided into those acts subject to Article 103 of the Korean Civil Code and those acts that are not. In terms of enforceability of anticompetitive practices, acts that are anticompetitive are simply null and void; this is because competition forms a part of social order in the sense that it constitutes one of the core values behind the Constitution and helps society achieve the principle of self determination. Therefore, in principle, any activities harmful to competition should be rendered void. On the other hand, regarding acts, which, while not anticompetitive, are considered unfair, I believe if the degree of unfairness is so severe that it is against public policy, those acts should also be rendered void. Although a person can question whether there is a separate need for the Korean Fair Trade Commission (hereinafter “KFTC”) to intervene in such cases, court decisions so far generally hold in favor of KFTC intervention in such cases. In cases where an act is considered to constitute unfair trade practice but does not rise to the level of violating public policy, it is hard to say that such activity should be rendered legally void. However, MRFTL allows the KFTC to apply sanctions such as issuing cease and desist order, or imposing fine and criminal penalties to parties engaged in such act. Hence, in terms of formulating legal policy, we need to carefully study this kind of discrepancy between civil law and competition law.