보건산업에 대한 독점규제법의 적용에 관한 연구 - 제약산업 리베이트 규제의 최근동향을 중심으로 -

It is natural that antitrust laws as general competition law are applied to health industry. However, because the industry has close relation to people's health, specific and various regulations which are difficult to find in general competition laws are prepared. Traditionally health industry was regarded as special good unsuitable for market system. The price of drugs which public health insurance is applied to was regulated by ‘market price reimbursement system’. General hospitals could purchase drugs only through wholesalers. They are examples of price regulation and entry regulation applied helath industry. Therefore, Korea Fair Trade Commission(KFTC) has many restrictions in enforcing Monopoly Regulation and Fair Trade Act(MRFTA). The main article that KFTC used was Article 23① about act of unfairly coercing or inducing customers of competitors to deal with the enterpriser in question. According to Enforcement Decree Attachment 1, act of providing or offering to provide unfair or excessive benefits to draw customers from competitors is prohibited. However, the role of KFTC had many limits in regulating unlawful rebate because reimbursement system was blocking price competition by drug companies. They were tempted to induce pharmacist and physicians by providing unfair benefits. The Ministry of Health and Welfare(MOHW) changed reimbursement policy and introduced price competition system. In addition to that, MOHW introduced the principle of dual punishment, which punish pharmacists and physicians receiving unfair rebates as well as enterpreneurs giving them. The these recent developments in the regulations of health industry must be positive in that price competition in health industry were introduced and the both parties giving and receiving unfair rebate could be punished. However, it is true that price competition by drug companies is restricted and it is not easy distinguish unfair rebate from fair rebate.