경쟁법상 과징금 부과체계의 원칙과 그 적용 ― 하도급법상 과징금 부과기준의 개선방안을 중심으로 ―

First of all, the primary principle in imposing fines under the Competition Law is that at least unfair profits or more from violations of the law should be imposed. This is a principle derived from the premise that the essence of fines as economic sanctions lies in the recovery of unfair profits. Of course, the recovery of unfair gains is made to some extent through fines, damages, and fines. However, it would be desirable for damages to be mainly focused on remedy, fines to be mainly focused on penalty, and to have a supplementary relationship with fines in terms of recovering unfair gains, in that it is possible for fines to achieve general and special prevention of violations through rapid and effective recovery of unfair gains. On the other hand, it is also necessary to emphasize that fines should be related to violative conduct. This means that the method of calculating the amount of fines and the variables used therein should be reasonably related to the conduct. In other words, the formula itself and the variables that make up the formula should be selected to indicate the illegality of violations of the law as accurately as possible. This second principle can function as a limitation, that is, there is a possibility that variables that are less related to the conduct may be selected in order to emphasize sanctions by imposing fines far exceeding unfair profits. The two main limitations of the fines system under the Fair Transactions in Subcontracting Act: (1) Of the 31 violations subject to the fines under the Act, only 9 can be calculated using the fixed rate method. (2) Despite the seriousness of the penalty, it is difficult to impose the penalty above 1 billion won. Considering this, the following suggestions can be proposed. In the calculation of subcontract fines, even in the case of types of acts that are difficult to convert the substance of violations into an indicator of ‘amount’, a new calculation standard that can needed. The basic concept that can be considered as an alternative will be the concept of ‘relevant sales’ designed appropriately for subcontracting transactions. In subcontracting, ‘amount of subcontract transactions’ themselves seem to correspond to the concept of relevant sales. In particular, looking at Article 12-3, in the case of paragraphs 1, 2, and 3, it will be said that a flat-rate fines is still appropriate. In the case of violation of paragraph 4, even if a fixed rate fines based on the transaction amount are applied, various circumstances must be considered in terms of the recovery of unfair gains. However, both aspects need to be kept in mind because it is important to fully consider the importance and specificity of the law and to maintain the simplicity of the entire fines imposition system under the Fair Transactions in Subcontracting Act.