공정거래법상 동의의결 제도의 내용과 문제점 검토

Consent decision is a mechanism that allows the Korea Fair Trade Commission (KFTC) to stop an enforcement procedure without any determination of wrongdoing by adopting a measure to the same effect as a remedy that a business entity or business association under investigation or adjudication by the KFTC has proposed to voluntarily resolve an anticompetitiveness, compensate consumer damages, or restore the fairness of the transaction. The KFTC may accept the remedies proposed as long as it considers the remedies appropriate to restore fair and free competition or to protect consumers or other business entities. Although the consent decision framework was introduced into Korean Monopoly Regulation and Fair Trade Act along with the ratification of Korea-United States Free Trade Agreement, there remain issues in interpretation of the provisions and other issues that need to be resolved on a legislative level. The purpose of this article is to examine the problems of the current consent decision provisions and to suggest some legislative alternatives that could maximize its beneficial effects. First, given that the remedies are to be voluntarily proposed by a business entity, requiring the appropriateness of remedies as an element of consent decision is unreasonable. Especially when considering that consent decisions do not assume a breach of law, it is inconsistent to require that a proposed remedy match the level of severity in enforcement of a conventional infringement decision which would be based on a breach of law. Second, excessive intervention by prosecutorial authorities and the possibility that a consent decision can be used as prima facie evidence in a subsequent lawsuit weakens the incentive to apply for a consent decision. Therefore the obligation to consult with the Public Prosecutor General should be eliminated and the legal effect clause of consent decisions should be revised to state that “the existence of a consent decision and the materials submitted in a consent decision proceeding shall not be used as evidence to establish a violation of law in a separate civil or criminal proceeding.”Third, allowing the appeal of a consent decision by an applicant (business entity) or some other third party is inconsistent with the original purpose of consent decisions which means to restore free and fair competition through efficient resolution. Therefore, an appeal of a consent decision should be allowed in very limited circumstances such as a serious procedural defect and only available to the applicant. Alternatively, a covenant not to appeal could be required to be included in consent decisions, similar to U.S. laws. Also, in interests of procedural economy, once a consent decision proceeding is initiated, the original infringement decision proceeding should be immediately suspended. Fourth, the prevention of abuse and misuse of consent decisions procedures and the protection of interested third parties must be taken into consideration. The prohibition on the withdrawal of an application for a consent decision once a proceeding is initiated will reduce the possibility of abuse and misuse of consent decisions and will also be helpful for the procedural economy. And when the KFTC terminates a consent decision and releases the applicant (business entity) from a binding consent decision, there should be a public consultation in the same manner as in the original consent decision procedure in order to protect interested third parties.