사업자단체의 제한행위에 대한 합리적 판단기준 및 쟁점

The Fair Trade Act considers liberal professions such as doctors and lawyers as business operators, with functional requirements playing a crucial role in defining the concept of business operators. However, these professions require a high level of public interest and ethics. Therefore, while the review for exception of unfair concerted actions primarily considers efficiency and pro-competitive effects, allowing exceptions for restrictive practices by business associations may necessitate normative value judgments due to their strong emphasis on public purposes unrelated to competition. To permit exceptions for restrictive practices by business associations, fundamental and universal criteria for consumer welfare are required, along with appropriate normative methodologies. As non-economic and non-competitive issues arising from competition principles and public interest may lead to conflicts among substantive norms under the constitution, a normatively harmonized interpretation between competition laws is imperative. There is a need to embrace a broader concept of consumer welfare that goes beyond the traditional consumer welfare concept based on competition policy, which focuses on consumer surplus derived from the difference between the price consumers are willing to pay and the price they actually pay, as a quantitative measure specific to the market, and encompasses non-economic and non-competitive benefits and values. To make a rational assessment of the relationship between the effects of competition restriction and efficiency enhancement, this paper examines the Wouters judgment of the European Union(EU). Furthermore, it aims to review normative methodologies that can find an appropriate balance between acts considered legitimate in public policy and the effects of restrictive practices.