공정거래법상 불공정거래행위의 위법성 판단기준에 대한 재검토 -경쟁질서와의 관련성을 중심으로

The Korea Fair Trade Commission (‘KFTC’)'s Guidelines on Review of Unfair Trade Practices (‘UTP Guidelines’) apply the unfairness criteria along with the competition restriction criteria as a standard for judging illegality of unfair trade practices under the Monopoly Regulation and Fair Trade Act of Korea (‘MRFTA’). It explains separately the meaning of competition restriction and unfairness, but there is no separate explanation about the relationship between the two. However, competition restriction standard and other standards referred to as unfairness standards should be viewed as having a common basis, which may be provisionally expressed as 'relevance to competitive order'. Other standards referred to as unfairness standards should be established as content relevant to the competitive order and, in principle, should be complementary to the competition restriction criteria. Through this process, the illegality of the unfair trade practices can be understood in terms of the relation with the competitive order. Therefore, even if it is categorizes as a type of act that judges illegality mainly through unfairness by the KFTC, a judgment stage should be set up to finally confirm whether it is necessary to regulate the act in accordance with the Fair Trade Act in view of the relation with the competitive order. This can be done by extracting the elements that are related to the competitive order from the criteria other than the competition restriction, and applying such criteria to an act, and then making an additional examination of the negative effects of the act on the competition in the market. It is necessary to reconstruct the contents of unfairness, which is the primary criterion in the type of conduct that judges illegality mainly by unfairness, as market-friendly contents and be involved in the relation with the competitive order. This should particularly consist of content related to market performance, such as substantial harm or likely harm on enterprises or consumers’ competitive interests as a counterpart to the act in order to differentiate it from private law standards such as ‘unfairness’ or 'anti-social order'. Here, the competitive interests of a business or a consumer may be considered as a counterpart in the case of being directly protected, or may be considered as a recipient of ultimate effect of the action in the case of being indirectly protected according to the type of behavior. In the case where the other party is the protection target, the business-to-business relationship and the business-to-consumer relationship need to be distinguished and the business-to-business relationship is required to establish more strengthened and proven criteria compared to the business-to-consumer relationship. In addition, in the case where the recipient of ultimate effect of the action is the protection target, the effect of the act on the fair competition order among the enterprises for enterprises, and the effect of the reasonable choice through the comparison for consumers are mainly examined.