유통분야 불공정거래행위에 대한 제재의 재구성

The Distribution Law concerning unfair trade practices(hereafter “the relevant Distribution Law) aims to promoting fair trade order and for this purpose it includes administrative, criminal and civil sanctions. Meanwhile, the Korea Fair Trade Commission(hereafter “the KFTC”) has tried to enhance deterrence effect by means of imposing enormous fines and facilitating private enforcement e.g. damage actions. However, this approach seems to be inefficient, especially because the administrative sanction has been focused on undertakings, not persons who are directly engaged in the actual infringements and have an incentive to commit unfair practices. In principal, fines cannot be imposed on individuals; they are hard to take criminal responsibility due to the KFTC’s reluctance to file criminal request to the Prosecutor General. Calculating corporate fines are mainly based on the “relevant turnover” of the challenged undertakings, which has not any rationale in terms of relevance, appropriateness and proportionality criteria and lacks any coherence under the relevant Distribution Law system. Excessive fine is not a panacea. What matters, is who is to undertake responsibility for that infringement. In this context, it is suggested de lege ferenda that the KFTC shall impose fines, in addition to an undertaking(more exactly the company ad a legal person), on representatives, directors or persons those act to the benefit of that undertaking. As a rule, wider application of criminal sanction through abolition of eliminating the KFTC’s exclusive complaint, is acceptable so far as considered gradually.