대규모소매점규제 법률과 WTO GATS

A few assembly men called for revisions in Distribution Industry Development Act(hereinafter, "Distribution Act") and Act on the Promotion of Cooperation for Common Development among Large, Medium, and Small Enterprises(hereinafter, "Common Development Act"), in order to revive, by curtailing the opening and operations of large-scale stores again, the protection of the economic interests of small retailers who represent one of their most important constituencies. The most deterring factor behind the revision of Distribution Act and Common Development Act was MOFAT(Ministry of Foreign Affairs and Trade)'s strong opposition that it is inconsistent with Korea's obligations under GATS(General Agreement on Trade in Services). The degree of regulatory freedom that is left to WTO Members in the field of trade in services depends, in particular, on the interpretation of the relevant provisions on domestic regulation (Article Ⅵ), market access (Article ⅩⅥ) and national treatment (Article ⅩⅦ) in the GATS and on their interplay. An overlap oftentimes occurs between Articles Ⅵ:5 and ⅩⅥ as respects measures falling under the terms of Article Ⅵ:5 ('approval procedures or licensing and qualification requirements') that also contain any of the limitations specified in Article ⅩⅥ. Licensing and qualification requirements and technical standards normally fall exclusively under the lenient disciplines set forth in Article Ⅵ:5, WTO Members having postponed stricter disciplines to future negotiations under Article Ⅵ:4. Only if such measures are coupled with market access restrictive elements as exhaustively defined in Article ⅩⅥ:2, will they come also under the per se prohibition that is set out in Article ⅩⅥ. In the overlap area, the Article ⅩⅥ prohibition prevails over an eventual Article Ⅵ:5 permission and consequently, the element of the measure which restricts market access in the sense of Article ⅩⅥ must be eliminated, unless it is justifiable or covered by a limitation under Article ⅩⅥ. In 1994, Korea made specific commitments in retail sectors, and therefore, licensing and qualification requirements and technical standards which are coupled with quantitative restrictions or contain other elements that are set forth in Article ⅩⅥ:2, are prohibited within such a committed sub-sector. A national measure which would allow large-scale retail stores to make access to a given retail store market by giving consideration to economic needs and limiting the overall output of services, has to be either eliminated or transformed into a qualitative requirement (setting out qualitative minimum requirements), because it amounts to a quantitative market access restriction in the sense of Article ⅩⅥ:2⒜. Thus, it may be recommended to shift the purpose of regulation of a large store from the protection of small- and medium-sized retail stores to the preservation of the local living environment, for example, by requiring a large store developer to take appropriate measures to avoid, or at least alleviate, inconveniencing local residents and businesses as a result of increased traffic, noise and waste that will accompany the location or operation of a new large store. However, it is to be noted that a regulation that prohibit large scale retail stores to sell certain items which are not enumerated in the schedule column is saved from market access discipline and national treatment discipline. As the Government has not committed itself to non-inscribed items in its Schedules of Specific Commitments submitted to the WTO, violation of Article 16 of the GATS(market access) and Article 17 of the GATS(national treatment) is probably not implicated in this respect. The issue will not be resolved until the entry of the Korea-EU FTA, where few item limitations on market access are scheduled within retailing services. Although it is too complicated to reach a firm conclusion regarding the revision of Distribution Act and Common Development Act, given the role of the consumers who are more concerned with lower prices and convenient shopping than with protecting the country's small-scale store, it should be taken into account that the over-regulated retail sector could impede modernization of the retail sector and it would be in the whole interest to reduce the inefficiencies in the small retailing sector while promoting large sectors.