공정거래법상 행정지도에 따른 부당한 공동행위에 대한 법적 검토

In the Republic of Korea, the administrative authority regulates market and businesses using related administrative measures from the regulator’s position in accordance with the Monopoly Regulation and Fair Trade Act. In particular, the administration fines businesses if they engage in unfair collective practices which can disrupt fair market competition. If businesses happen to engage in this kind of unfair collective practice according to the administrative guidance given by the administration, however, there could be a controversy on how to determine its illegality. In handling businesses’ unfair collective practices associated with administrative guidance, therefore, it is required to develop an appropriate alternative plan by reviewing harmony with fair competition in addition to a loophole in current law enforcement. For this, there should be clear conclusion on which clause should apply to the administrative guidance on the Monopoly Regulation and Fair Trade Act. In other words, this study attempted to review justifiable causes excluding the application of the aforesaid act when the administrative guidance was involved. In addition, it investigated how to explicitly stipulate administrative guidance-related provisions just like the case of Japan when the administrative guidance was viewed as the reasons for excluding the law. In terms of a way to search for harmony between businesses and market economy after the administrative guidance, this study examined law enforcement such as corrective order-oriented surcharge. In other words, it is needed to reach a mutual consent between the businesses and the market economy by imposing administrative sanction-like surcharge (reduced fine) at the 1st violation and additionally imposing a fine which had been reduced after converting it into punitive surcharge at the 2nd violation.