공정거래법상 과징금의 실제부과율 추정 및 국제비교: 부당공동행위를 중심으로

The use of administrative surcharges, which are imposed upon regulatory violations of the Korean Fair Trade Act, is rapidly increasing both in the frequency and the per-case amount. Related legal disputes are also increasingly brought to the appeal court by the regulatory violators with the defense that the surcharges have been excessively imposed by the Korea Fair Trade Commission. In contrast, the National Assembly and the Korea Fair Trade Commission are in the process of changing relevant stipulations to raise the overall level of the administrative surcharges, considering that the previous level fell short of fulfilling the role of containing antitrust activities and unfair practices by firms and business associations. The purpose of this paper, given the aforementioned seemingly conflicting situations, is to estimate the ‘actual levy rates’ and ‘basic levy rates’ of the surcharges imposed by the Korea Fair Trade Commission to the violators of regulations against the improper concerted practices (or cartels). Even if the ‘legal levy rates’, which are applied to the so-called affected commerce, are stipulated in the Korean Fair Trade Act across different violations. However, the legal levy rates are the maximum penalties rates that could be imposed and the actual levy rates, along with the basic levy rates, are what govern the potential offenders in reality. While they are known to be lower than the legal levy rates, their precise scales are yet to be investigated. Another purpose is to compare the estimations results with the most prevailing international counterparts that have been imposed in OECD, EU, the United States, etc., in order to help find proper rates closer to the socially optimal levels. For these purposes, we collected all surcharge cases decided by the Fair Trade Commission from 2005 to 2015, and constructed a comprehensive dataset after undertaking required adjustment for more accurate analyses, such as replacing an initial amount initially imposed in a case by its finally decided amount if the Commission reexamined the case followed by an appeal at the court. In particular, we focused on the cartel cases as the per-case surcharge amounts have been overwhelmingly large for violations of the cartel regulation in the Korean Fair Trade Act. The number of relevant cases was also ranked second among the eleven broad categories of prohibited practices in the Act. Based on the more accurately constructed dataset of 337 cartel cases in total, we were able to provide very meaningful findings. First, the average of the actual levy rates were estimated to be only 2.5%, which fall short of the one-sixth of the averages of OECD, EU, and the United States (i.e., approximately 16%). In fact, the Korean average reduces further to the one-eighth of the entire world average, which was derived from a recent study that utilized a significantly large database. Second, while the actual levy rate is decided after three more adjustment stages followed by the basic levy rate imposed at the outset for each case, the average of the basic levy rates was estimated to be also very low only at 6.5% over the whole sampling period. Thus, the basic levy rate in Korea is lower than half of even the actual levy rate of the aforementioned major countries. Third, the legal levy rate stipulated in the Act, 10%, is also lower than that in other countries. More specifically, the legal levy rate ranges from one-third to half of the legal standards used in the major countries. In other words, the basic levy rate (6.5%) in Korea, which is slightly over the legal maximum that is already fairly low compared to other countries, has further reduced enormously over the three adjustment stages to only 2.5% after all. Therefore, we cannot reject the hypothesis that a great deal of generosity has been exercised by the Korea Fair Trade Commission, regardless of legal or other causes behind such exercises.