행정지도의 개념과 실제 ― 공정거래법상 부당한 공동행위와의 관계를 중심으로 ―

The definition of administrative guidance is “any action of administrative authorities pursuing a private entity’s or a person’s voluntary cooperation in the form of guidance, recommendation or consultation, etc., in order to achieve certain administrative purposes within their power and jurisdiction”. Such administrative guidance is supplementary to regulatory administrative action in nature and thus administrative action that is binding should not be viewed as administrative guidance from the first place but should instead be viewed as regulatory administrative action. Whether any administrative action is binding or not can be determined based on its objectives and means of implementation. Administrative guidance may affect a variety of aspects of cartels, i.e., finding of formation of collusive agreement, assessment of anticompetitive effects and unreasonableness, applicability of the exemption clause under Article 58 of the Monopoly Regulation and Fair Trade Act (“Act”) and degrees of administrative sanctions and/or criminal penalties that may be imposed. This article will analyze two cases regarding the public procurement pricing and the introduction and sales of Non-DRM music respectively to find out how administrative guidance influenced law enforcement of cartels. In doing so, this article will argue that where an administrative guidance merely triggers exchanges of information for an agreement among undertakings or an agreement is established in compliance with the relevant administrative guidance, such agreement should not be viewed as collusive. In addition, where a regulatory administrative guidance results in the establishment of a specific market structure, within which an agreement naturally follows, this agreement can be treated as mere conscious parallelism. Moreover, since each party’s awareness of potential anticompetitive effects is required for the finding of establishment of collusive agreement, such agreement may not constitute a cartel where the parties concluded their agreement simply based on an administrative guidance without being aware of the potential anti-competitiveness of their agreement. Additionally, if administrative guidance results in the formation of price or trading term that is not related with market competition, the presumption of cartel under Article 19(5) of the Act can be rebutted in which case their anti-competitiveness can also be denied. Lastly, where a concerted behavior is a result of undertakings’ inevitable group efforts to respond to an excessive administrative guidance, their agreement is unlikely to be viewed as unreasonable within the meaning of cartel regulation.