대형마트 및 기업형슈퍼마켓 영업일시(營業日時) 규제에 관한 법적 고찰

Regulations restricting the business hours of Major Supermarkets and Super Supermarkets (hereafter referred to as ‘Major Supermarkets’) have been introduced through the 「Distribution Industry Development Act」. In February of 2012, the Korea Chain Store Association filed a constitutional complaint against Article 12-2 of the 「Distribution Industry Development Act」 on the grounds that it violates business freedom of Major Supermarkets and in addition infringed consumer rights. In January of 2013, amendments were made to the 「Distribution Industry Development Act」 to tighten operators’ business hour regulations, and in response Major Supermarkets, along with their suppliers are preparing to file a constitutional appeal against the amendment. Nevertheless, the National Assembly has initiated amendments to the 「Distribution Industry Development Act」 in order to strengthen Major Supermarkets business hour restrictions and regulations. Changes in the Distribution Industry structure and consumption patterns has lead the Small Distributor Industry, consisting primarily of Traditional Markets and Small Merchants, to the verge of collapse. This situation has magnified due to the sudden increase in the number of Major Supermarkets. Ultimately, this problem expanded into that of societal structure instigating the demand for the protection of small merchants and regulations of large enterprises, thus Article 12-2 of the 「Distribution Industry Development Act」 restricting business hours of Major Supermarkets is the product of such demands within the distribution industry. Article 12-2 of the 「Distribution Industry Development Act」 amended on the 17th of January 2012, conceded regulatory authority to the head of local governments and in addition ordinances were to be enacted according to its requirements in applying business hour regulations. Local governments established ordinances and according to the regulations each Mayor authorized restrictive measures regarding business hours and designating mandatory off-days for Major Supermarkets. Major Supermarkets filed a revocation litigation based on the illegitimacy of dispositions restricting business hours and as a result of the success of this lawsuit, the attitude towards the regulations were slightly mollified. However, this result does not judge the legality of restricting business hours of Major Supermarkets. Rather, this adjudication focuses on the discussion of the limitations of ordinance enactment authority through this regards the legality of ordinance and its resulting violation of dispositions, thus there is a need to evaluate the administrative legal issues. In addition, as the issue of the litigation was not an assessment of the system itself, the actual profitability of the discussing the constitutionality of business hour restrictions through the 「Distribution Industry Development Act」 is indisputable. This paper applies the proportionality principle to determine whether restricting business hours of Major Supermarkets is constitutionally permissible. Considering the zero-sum standing of the distribution industry, restricting the business hours of Major Supermarket could influence the protection of Small Merchants and the Traditional Markets. However, considering that the regression of the small distributor industry is not only attributed to Major Supermarkets but a combination of other factors, close evaluation is required to determine whether strengthening the restrictions of Major Supermarkets can be considered a suitable method. Comprehensively considering the legal interests relating to business hour restrictions of Major Supermarkets such as the transparent establishment of distribution, laborers’ rights, mutually beneficial development, business rights of Major Supermarkets, and consumer protection, this paper presents the view that restricting the business hours of Major Supermarkets holds high potential in violating constitutional law. Comparable to economic regulations, distribution industry regulations are largely affected by the environment in which they are applied. In a societal structure with a majority of self-employed workers, increase of discussions to democratize the economy and in the constitutional court where political bias is inevitable, making a decision on unconstitutionality regarding business hour regulations of the 「Distribution Industry Development Act」 cannot be simple. However, considering all parties including Major Supermarkets, Small Merchants, and consumers, it is necessary to examine what policy can further the competitiveness of the distribution industry. This paper aims to contribute to the establishment of the policy direction of the distribution sector through the issues mentioned above.