노무제공자단체 사례를 통해 살펴본 공정거래법상 수범자 적격성 판단과정에 대한 고찰

This study aims to establish a framework for determining the eligibility of business associations as subjects of regulation under Korea’s Fair Trade Act, with a particular focus on the applicability of the Act to organizations of labor-providing individuals (so-called “labor-providing organizations”). With the rapid expansion of digital platforms and the ongoing transformation of labor market structures, the traditional boundaries between “business operators” and “workers” have become increasingly blurred. As a result, new types of economic actors have emerged, whose status as subjects under the Fair Trade Act is legally ambiguous. In particular, cases have arisen in which labor-providing organizations-despite exhibiting characteristics of labor unions-have been sanctioned as business associations under the Fair Trade Act, prompting active legal debate on the legitimacy of such enforcement. The paper begins by analyzing the statutory definitions of “business operator” and “business association” under the Act, emphasizing that the concept of “business operator” constitutes the fundamental unit for determining the scope of applicability. It then explores the legal concept and historical development of labor-providing individuals, their status under labor law, and how major jurisdictions-including the U.S., EU, Germany, and Japan-have addressed similar issues under their competition laws. Through case studies of decisions issued by the Korea Fair Trade Commission (KFTC), including those involving the Busan branch of the Korean Construction Workers’ Union, the Cargo Solidarity Division of the Public Transport Workers’ Union, and the Ulsan Port Labor Union, the paper identifies critical limitations in the current approach to determining subject eligibility, which often relies on formalistic and inconsistent reasoning. In response, this paper proposes two main improvements. First, it recommends the establishment of clear and consistent criteria for subject determination, centered on the indicators of “economic activity” and “independence” for business operators, and “organizational structure” and “collective resolution” for business associations. Second, it suggests a structural reform of the KFTC’s adjudication process: specifically, adding a third-stage review of subject eligibility after an initial examination of general facts and a separate assessment of the conduct’s competitive effects and legal justifications. This approach is expected to enhance both the coherence and legitimacy of the Fair Trade Act’s enforcement in cases involving new and hybrid economic entities.