사업자단체의 정부 정책에 반대하기 위한 휴업 결의에 대한 공정거래법의 적용

In 2003, the Supreme Court ruled that the Korean Medical Association, as a business association, violated Article 51, Paragraph 1, Subparagraph 3 of the Korean Competition Law by coercing physicians to close their clinics in protest against government healthcare policy. In contrast, in 2021, the Supreme Court ruled that the Korean Medical Association’s decision encouraging doctors to close their clinics to oppose government policy—absent any element of coercion—did not constitute a violation of Article 51, Paragraph 1, Subparagraphs 3 of the law. Furthermore, the court concluded that the decision of the Medical Association’s decision did not infringe Article 51, Paragraph 1, Subparagraphs 1 of the law, given that the extent of the restriction on competition was minimal and there was no demonstrable intent to restrict competition. First, this paper suggests that although freedom of expression under Article 21 of the Constitution is protected, it is subject to limitations. Since the Medical Act does not contain any provisions permitting collective action in the form of cartels among medical professionals, the Korean Medical Association’s resolution does not fall within the exemption provided under Article 116 of the Korean Competition Law. Second, the determination of illegality under Subparagraph 3 should primarily rest on the presence of unfair conduct, such as coercion or undue pressure on member physicians. Finally, where the actions of a business association are motivated by a bona fide intention to express opposition to public policy, rather than by anti-competitive objectives, it would be appropriate to exempt such conduct from the application of competition law - as is the case in the United States, Japan, and Germany.