하도급 거래의 거래거절에 관한 위법성 판단기준과 정당화 사유 - 제조위탁 거래를 중심으로

Labor based industries such as automobile, shipbuilding has used many manufacturing subcontracts about the supply of materials with cooperative firms. The firm has managed various contingent workers, which be able to response the demands of consignment from big subcontractor. When the economic situation be worse, the amount of orders received could be decreased. In that case, principal contractor could refuse renewal of new contract or suspend the transaction with many subcontractors. If the principal contractor would deny unreasonably renewing of the subcontract with specific subcontractor, it could violate either the Article 8 of the Fair Transactions in Subcontracting Act(FTSA) or Article 3-2 as well as Article 23 of the Monopoly Regulation and Fair Trade Act(MRFTA). Firstly, refusal to deal of market dominant undertaking can build the unreasonable interruption to other firms after Art.3-2 MRFTA. For regulating that, KFTC must show the monopolized intent or anti-competitive effect, which are difficult without using some economic evidence. Secondly, refusal to deal can violate Art.23(1) subpara.1. Originally every person has freedom to start and cease the transaction anybody in the market economy, therefore unreasonableness after that provision has admitted in the limited situation, that is, hindering the fair transaction order. Finally, it could build the violation of the provision of the FTSA. But KFTC should avoid the overlapping application of both acts. At any time the principal contractors can be justified when he show no intent of monopolizing or responsibility of subcontractor after the standard which is already made in time of starting contract or inevitable refusal to deal because of economic depression, specific circumstance of person placing an order.