대규모유통업법의 법적 지위와 성격

This paper discusses the legal status and nature of the Act on Transactions Fairness in Large Retail Business (“Large Retail Business Act”) by defining it as a Transactions Fairness Law. Subsequently, it analyzes the characteristics of this Transactions Fairness Law in relation to Enterprise Transaction Law and Fair Trade Law, and then examines the specific features of the Large Retail Business Act as such a law. The nature of a Transactions Fairness Act can be discussed in the context of its relationship with Enterprise Transaction Law and Fair Trade Law. While Enterprise Transaction Law regulates private law order from a private law perspective, focusing on the relationship between contracting parties through the adjustment of unfair contractual terms or private rights and obligations, Fair Trade Law aims to establish trade order or competition order from a public law perspective, concerning economic regulation and coordination. Although Article 5 of the Large Retail Business Act stipulates the principle of good faith, a principle developed in private law, this Act, which serves as a basis for public law intervention, should not replace Enterprise Transaction Law but rather originate from Fair Trade Law and complement Enterprise Transaction Law. Therefore, it should be based on principles differentiated from those of private law. In relation to Fair Trade Law, the Transactions Fairness Act shares the common theoretical foundation of ordoliberalism, which considers the protection of the competitive process and performance competition as core elements of competition policy. The Supreme Court understands the illegality of unfair trade practices under the Act on Monopoly Regulation and Fair Trade (“Fair Trade Act”) in relation to competition order or trade order, which is broader than the restriction of competition. This can be seen as influenced by ordoliberalism, which views competition or trade from an orderly perspective. Among the types of unfair trade practices, the illegality of the abuse of superior bargaining power, which is the basis of Transactions Fairness Acts, tends to be judged based on the relevance to trade order centered on normal trade practices. However, even when considering normal trade practices as a judgment criterion, clear limiting principles need to be applied. Laws classified as the Transactions Fairness Act, despite their common basis in the abuse of superior bargaining power, have distinguishing features in terms of the determination of superior bargaining power, the structure of ex-post regulation (composition of types of conduct and judgment of unreasonableness), the inclusion of ex-ante regulation, and the inclusion of regulatory measures based on mutual cooperation. Analyzing the provisions of Large Retail Business Act reveals that these characteristics of the Transactions Fairness Act are more clearly and sometimes more strongly manifested than in other Transactions Fairness Acts such as the Subcontracting Act, the Franchise Business Act, and the Retail Agency Act. In particular, as the economic weight and social importance of distribution increase, the scope of application of the Large Retail Business Act is expanding beyond the originally intended range of large retailers to include franchising corresponding to wholesale, store leases distinct from sales, and even attempts to extend to online platform intermediary transactions. In this context, it is necessary to establish interpretation and judgment principles and apply them on a case-by-case basis based on facts to reasonably limit the scope of application of the Large Retail Business Act. The purpose of this paper is to find implications for improving the Act on the Large Retail Business Act based on the above discussion and analysis, so that it can move away from sector-specific regulation that has de facto deeply penetrated the realm of Enterprise Transaction Law and return to the original framework of Fair Trade Law. The conclusion examines improvement measures for this purpose, divided into interpretative and legislative aspects.