거래상 지위의 남용행위와 거래질서

Article 23 of the Monopoly Regulation and Fair Trade Act prohibits the “abuse of superior bargaining power”—a type of “unfair trade practices”. The Korea Fair Trade Commission (the “KFTC”), as the administrative body possessing the authority to levy corrective measures and administrative fines against companies that enter into agreements with counterparties containing unfair terms and conditions, may restrain the principle of private autonomy through such legal enforcement. According to the Supreme Court of Korea, Decision 2012du18325 on September 10, 2015, in order to find an impediment of fair trade, behaviors must at least have “relevance to trade order”, and when the counterparties are consumers, if there are concerns of harm to many unspecified consumers arising from the behaviors of the enterprise with the superior bargaining power or that similar behaviors would be repeated continuously, then “relevance to trade order” would be established. The ruling demanded a change in the KFTC’s practices which have not accounted for the “relevance to trade order” until now. The “relevance to trade order” seems to mean that the unfairness of a transaction has a substantial negative effect, or raises concerns of such effect, on transactions between private persons in the entire societal context. The aforementioned court ruling, holding that an abuse of superior bargaining power would not be found in the absence of “relevance to trade order”, may be criticized for making it more difficult for transaction counterparties harmed by unfair terms and conditions to obtain legal remedies. To resolve this issue, if necessary, the enactment of a special civil law that allows for transaction counterparties subjected to such disadvantage to file injunctions against the relevant enterprise abusing its superior bargaining power may be considered as an alternative.