하도급법상 지급명령의 법적 쟁점 - 대법원 2015. 12. 10. 선고 2013두35013 판결 및 대법원 2016. 2. 18. 선고 2012두1555 판결 -

The Fair Subcontract Transactions Act in Korea entitles Korea Fair Trade Commission(“KFTC) to order the principal contractors who have violated Articles 4 through 20 to pay subcontract consideration. This is to take measures necessary for preventing recurrence or correcting the relevant violations. It seems that KFTC exercise this payment order in case of violation of Article 4 from about the year 2007. This order is designed to provide the subcontractor with quick and effective means of relief. The order, however, has raised some questions of constitutionality and applicability. Recent Supreme Court cases, for instance 2012Du1555 case and 2013Du19622 well show that legal issues concerning payment order are getting much more complex. In case KFTC considers payment order on violation of Article 4(Prohibition of Fixing Unreasonable subcontract prices), the fair subcontract prices must be calculated prudently. Moreover principal contractors’s defences including set-off should be taken into account for the purpose of harmonizing KFTC’s payment order with decision of civil court.