부당한 공동행위에 대한 과징금의 검토

Monopoly Regulation and Fair Trade Act ("MRFTA") provides various remedies against cartel. They include cease and desist order, administrative fine and criminal sanction. Korea Fair Trade Commission("KFTC") has a discretion of imposing administrative fine, subject to judicial review and it is most frequently used sanction. According to Korean Supreme Court, administrative fine on cartel has disgorgement character as a main purpose, but it has punitive character also. Under MRFTA article 22 and MRFTA enforcement decree article 9, administrative fine can be imposed to the extent not exceeding 10% of affected turnover. The affected turnover has three factors according to above articles. They are (1) affected product, (2) duration of violation and (3) Turnover. Recently, court has been active in reviewing the appropriateness of administrative fine and there have been many debates over the meaning of affected product, among other things. Even though there are some court decisions about affected product, clear interpretation of affected product has not been well settled yet. The purpose of this study is to propose clearer guidance of the interpretation of the affected product, mainly, and other related issues through comparative study and analysis of court decisions. From the perspective of comparative study, U.S., EU, and the Netherlands are operating similar affected turnover standard with Korea. The Federal Sentencing Guideline of U.S. provides that the fine for the cartel will be calculated based on 20% of the volume of affected commerce. U.S. Supreme Court has not made a decision regarding the meaning of the volume of affected commerce. However, there are four U.S. Circuit Court decisions. According to them, it is presumed that turnover during the violation is affected by the violation, but the defendant may rebut that presumption by offering evidence that certain sales, even though made during a period when the conspiracy was effective, were not affected by the conspiracy. EU and the Netherlands don't use that kind of presumption structure. They focus on whether a price of the certain product is influence by the violation or not. If they are influenced, they are included in the affected turnover. Court decisions of Korea are in line with EU and the Netherlands. Court focus on whether the price of specific product is influenced by the conspiracy even though the product was not directly included in the conspiracy. In conclusion, the meaning of 'affect' is the key of clear interpretation of affected prodcut. Based on the disgorgement character of the administrative fine on cartel, 'affect' should mean the situation where cartel participants exploit some additional benefits which would have not been available without cartel. Thus, if the price of a specific product is maintained or increased, output is decreased, innovation is hindered or other equivalent things occur, the product is affected product even though it is not included in the agreement of the cartel participants. This interpretation is also in line with the court decisions and other jurisdictions' standard.