하도급법상 납품단가 연동제에 관한 법적 쟁점과 평가

The legislative progress and examples of each country regarding the ‘Price Adjustment System’ recently introduced in the 「Fair Trans- actions in Subcontracting Act」(hereinafter “FTSA”) have been reviewed in this paper. It seems that no country has introduced this system in the private sector, but most countries have introduced a similar system in the public sector, and even in the private sector, the principle of change of circumstances is used to create unreasonable results due to changes in raw material prices between parties. The legal issues regarding the necessity or legitimacy of the introduction of this system are summarized as follows; First, since most of the provisions of the FTSA and 「Act on the Promotion of Mutually Beneficial Cooperation between Large Enterprises and SMEs」, such as definitions, issuance of documents, policy support, and sanctions, are almost the same, unnecessary double regulation can lead to confusion in the application system. So, it seems necessary to correct them, and in order to fundamentally solve this problem, it would be desirable in the long run to collect laws and regulations that have a common regulatory element of ‘abuse of trading position’ and integrate them into the so called 「Prevention of Abuse of Bargaining Position Act」 or 「Framework Act on Unfair Trade Practices」 to achieve consistency. Second, there are legal and economic limitations inherent in this system. There is an aspect of excessively restricting private autonomy beyond the scope of regulation of the socialistic market economy pursued by our Constitution, and economically, a situation unfavorable to recipients may develop due to a drop in the winning bid price or the original contractor's insistence on interlocking. In addition, consumer welfare may be damaged due to the passing on prices to consumers. Therefore, the response to this should be prudent. Third, there is room for controversy because the range of principal raw materials to be applied is not clear, and there is also an unclear part in interpretation in the range of interlocking subcontract payments. In addition, from the point of view of the subcontractor, even if the subcontracting payment is interlocked, it may face a difficult situation if the timing does not occur quickly. In light of the Constitution and foreign legislative practices, it is most desirable to regulate autonomously between the contractor and the subcontractor, and to give the parties room for negotiation, prevent unfair subcontractors as well as unfair contractors, and form a natural culture in which they can coexist in the long run.