하도급법 상 위법한 대금 결정의 판단기준과 제재의 적합성 연구

Subcontracting is a private contract, but the trading position of the principal contractor is often superior to that of the subcontractor. Thus, the Fair Trade in Subcontract Act was enacted so that the government could be involved in the content and implementation of the subcontract because of the possibility of unfairness in the contract relationship. The decision on the payment under the subcontracting method is that the principal contractor and the subcontractor should be determined by the exchange and agreement of sufficient information so that the service provider does not receive any less than the others normally paid. However, if such an action is not proved, it will be considered an unfair payment decision. Such acts should be interpreted in an objective and reasonable way in considering the circumstances for determining the illegality of the acts, since there are cases in which proof of a justifiable cause is not necessary. It should be fully considered that the pattern of subcontracting varies widely, the reasons for the low payment vary widely and in some cases it has economic rationality. Notwithstanding the current statutory structure, in which the FTC does not prove unfair to low subcontracting payment, and which makes the principal contractor should justify its decision on subcontracting, in particular types of acts, such actions, regardless of their justifiable reasons, constitute an unjustified payment decision. In addition, clarifying the criteria for determining the factors of proof of several acts is considered to be an important factor in future law enforcement, as such actions would result in very high levels of sanctions, such as corrective actions, penalty points in addition to fines, and limiting eligibility for bidding. It should not be overlooked that the nature and extent of the sanctions imposed by the acts are an important factor in determining illegality, as are the characteristics of various industries or external factors caused by the overall economic downturn, and above all, for activities where the burden of proof has been shifted, such as the deemed provisions.