부정경쟁방지법상 시정권고에 관한 공법적 고찰

The Unfair Competition Prevention Act, which deals with the unfair competition act, has been legislated and discussed from the perspective of private law or intellectual property law. However, the Recommendation for Correction of Violations in Article 8 of the Unfair Competition Prevention Act is meaningful as a system that can be approached from the viewpoint of public law in the regulation system of unfair competition act, which is generally regarded as the private law domain. In accordance with the distinction standard between public law and private law, in case where the types of unfair competition acts aimed at protection of consumers' rights and establishment of fair trade order involve the administrative investigation procedure carried out by the administrative agency, it can be regarded as a public law relationship. When examining the legal nature of the Recommendation for Correction of Violations from the point of view of public law, it is the administrative guidance as unilateral informal administrative action by the administrative agency. This Recommendation for Correction of Violations as an administrative guidance can not be recognized as a disposition when a comprehensive examination of the provisions within the Unfair Competition Prevention Law, comparison with other legal systems, and the judicial ruling. The legislative remedies for the current system of the Recommendation for Correction of Violations are as follows: ① Measures to adopt the provision that enforces the implementation of the Recommendation or the provision of order for correction of violations in order to enhance the effectiveness of the law enforcement, ② Method of raising the provisions for guaranteeing procedures to the legal level or applying the Administrative Procedure Act, ③ Measures to improve the effectiveness of the Article 14-7 of the Unfair Competition Prevention Act(request for inspections of trial record), ④ Method of operating the system in the direction of complementing the public law such as the Fair Transactions in Subcontracting Act and the Fair Trade Act. In the future, discussions should be continued to supplement the existing system of civil rights relief by administrative measures, to promote systematization with other public law, and to improve the rights of the people.