행정지도에 따른 보험회사들의 공동행위에 대한 공정거래위원회의 해석에 대한 연구

In Korea, the financial supervisory authorities enforce administrative guidance leading to insurance companies' collaborative act. The Korean Fair Trade Commission imposes on fine on insurance companies for reasons of no legal ground for administrative guidance and unfairness of insurance companies' collaborative act. In addition, the Korean Fair Trade Commission interprets that the insurance companies do not have any reason to follow the administrative guidance because there is no binding force in the administrative guidance. However, in insurance industry practice, this administrative guidance has almost absolutely compulsory power to the insurance companies. Therefore, insurance companies have no choice but fully following this guidance. According to the majority opinion in administrative law, the financial supervisory authorities's administrative guidances do not require the legal basis. If administrative guidance accompanies binding force, it is possible to say that there is no autonomy of agreement for collaborative act between the insurance companies. Furthermore, it is also possible to interpret that there is no collaborative act itself. In addition, administrative act with binding force may become one of circumstances precluding illegality or circumstances precluding legal accountability. When the Korean Fair Trade Commission applies the Monopoly Regulation and Fair Trade Act to this case, the fact that there is de facto legal force(binding force) in the administrative guidance should be considered. The Korean Fair Trade Commission must consider the question of unfairness of insurance companies' collaborative act along with the agreement of restriction of competition. The new provision and article that stipulate the legal basis of not only insurance companies' collaborative act but also administrative guidance by the financial supervisory authorities should be made and amended in the Insurance Business Act.