공정거래법상 부당한 공동행위 규정에서의 ‘다음 각 호’의 의미 - 제3호와 제6호의 ‘거래 제한’의 의미와 제9호 전단의 역할론을 중심으로-
Meaning of each subparagraph of Art.40 para. 1 in the MRFTA - Based on the meaning of “Trade Restriction” and the role of subpara. 9
황태희(성신여자대학교)
46권, 281~298쪽
초록
Art. 40 para. 1 of the Korean MRFTAct uses a method of listing the types of violations in terms of behavior. However, in the case of unfair colliusion that do not have specific types of acts in the enforcement ordinance, it is necessary to strictly interpret them in consideration of criminal sanctions with violations. In other words, in the case of the ‘next subparagraph’ stipulated in Art. 40 paragraph 1, it should be interpreted as a limited enumeration regulation, and if there is any mutual interference between regulations, it should be resolved through interpretation theory. For example, it is not desirable to regulate all types of ‘transaction restrictions’ to subpara. 3 just because the regulations for ‘restricting trades’ are placed in subpara. 3. The reason is that the criteria and procedures for examining unjustness in hardcore cartels are different from those in softcore joint actions. In particular, if an act restricts ‘types or standards’, it is judged by applying subpara. 6 first, and unless it is clearly proven whether it has the nature of a hidden hardcore cartel with only the effect of limiting competition, there is much room for the disposition to be considered invalid. In addition, it is not desirable to comprehensively interpret the subpara. 9 as supplementary provisions of others. In addition, in the case of adding reasons for disposition different from the original disposition, due to the characteristics of each subparagraph of Art. 40 para. 1, it is necessary to determine whether to allow it by examining the ‘identity of the basic facts’. However, the regulation of this enumeration method is not easy to cover various competition restrictions in a rapidly changing economic environment, and it is necessary to respond to a new cartel in the long run, so the legislative theory of changing unfair joint actions to general provisions. It can be considered reasonable for that reason, but it should be accompanied by improvement of criminal sanctions.
Abstract
Art. 40 para. 1 of the Korean MRFTAct uses a method of listing the types of violations in terms of behavior. However, in the case of unfair colliusion that do not have specific types of acts in the enforcement ordinance, it is necessary to strictly interpret them in consideration of criminal sanctions with violations. In other words, in the case of the ‘next subparagraph’ stipulated in Art. 40 paragraph 1, it should be interpreted as a limited enumeration regulation, and if there is any mutual interference between regulations, it should be resolved through interpretation theory. For example, it is not desirable to regulate all types of ‘transaction restrictions’ to subpara. 3 just because the regulations for ‘restricting trades’ are placed in subpara. 3. The reason is that the criteria and procedures for examining unjustness in hardcore cartels are different from those in softcore joint actions. In particular, if an act restricts ‘types or standards’, it is judged by applying subpara. 6 first, and unless it is clearly proven whether it has the nature of a hidden hardcore cartel with only the effect of limiting competition, there is much room for the disposition to be considered invalid. In addition, it is not desirable to comprehensively interpret the subpara. 9 as supplementary provisions of others. In addition, in the case of adding reasons for disposition different from the original disposition, due to the characteristics of each subparagraph of Art. 40 para. 1, it is necessary to determine whether to allow it by examining the ‘identity of the basic facts’. However, the regulation of this enumeration method is not easy to cover various competition restrictions in a rapidly changing economic environment, and it is necessary to respond to a new cartel in the long run, so the legislative theory of changing unfair joint actions to general provisions. It can be considered reasonable for that reason, but it should be accompanied by improvement of criminal sanctions.
- 발행기관:
- 한국경쟁법학회
- 분류:
- 기타법학