공정거래법의 적용대상인 사업자규정의 변천과 해석방향

The purpose of this study is to explain how a provision dealing with the definition of ‘enterpriser’ has evolved over the years and how the concept should be interpreted in the Monopoly Regulation and Fair Trade Act (hereinafter refer to as the “Fair Trade Act”). There had not been much discussions on definition and interpretation of the term ‘enterpriser’ despite the emphasis that the Fair Trade Act puts on the term ‘enterpriser’ in its application. It is attributed to the fact that since the enactment, the Fair Trade Act adopted the positive system that lists scope of businesses in interpreting ‘enterpriser’ rather than focusing on the meaning of the terminology, the ‘enterpriser’. There are also very limited committee decisions and court cases that can be referenced on the meaning of ‘enterpriser’and its interpretation. The Asian financial crisis which started in late 1997 resulted in many revisions of the Fair Trade Act. A year long discussion produced substantial changes in the Fair Trade Act as well as modifications in the term ‘enterpriser’. The definition of ‘enterpriser’ has changed from making determinative listing of the business scopes to the negative system which is free from limiting the business scopes. Such amendments put to an end to all discussions on business categories. The previous discussions on the definition of ‘enterpriser’ are based on the current definition of ‘enterpriser’ as stipulated in the Fair Trade Act. By actively determining the meaning of ‘enterpriser,’ which is commonly applied to all clauses in the Fair Trade Act, through interpretation, any person or business that does not satisfy the requirements of reciprocity, continuity, repetitiveness, independence, etc. cannot be considered as an ‘enterpriser’ and will be excluded from the application even before being reviewed in accordance to the individual clauses. Also by comparing ‘enterpriser’ to the concept of consumers, employees and public authority, those entities are excluded in advance from the application of the Fair Trade Act. However, this is a problem of relativity and it needs to be determined in relations to the actual business practices and competition orders within the market where economic activity takes place in. First, it is not necessary to define application scope of the Fair Trade Act by discussing the definition of ‘enterpriser’ in advance. The purpose of the Fair Trade Act is to promote fair and free competition in the market. Therefore, any individual or business who may have an influence over fair and free competition shall be viewed as an ‘enterpriser’ in accordance with the Fair Trade Act. In addition, when the application of the ‘enterpriser’ is defined according to the economic activity itself rather than general definition, then it is necessary to develop ways to define and interpret ‘enterpriser’ in accordance with individual clauses. It is because the current Fair Trade Act defines ‘enterpriser’ differently in regards to individual clauses such as abuse of market dominance, improper cartels, and competition restricting enterprise combination, etc. Lastly in order to interpret the term ‘enterpriser’ as described above, the provision which defines the ‘enterpriser’ must be deleted. By using the same term repetitively, it not only is useless in interpreting ‘enterpriser’ but also can result in unnecessary attempts to determine general and commonly accepted definition of ‘enterpriser’ before applying it to the individual clauses.