국제하도급거래에 대한 하도급법의 적용: 국제사법적 접근방법을 중심으로

Recently, interest in the Fair Transactions in Subcontracting Act (“Subcontracting Act”) has grown. The Subcontracting Act, while a special act under the Monopoly Regulation and Fair Trade Act (“Fair Trade Act”), also contains civil law regulations on contract terms. Therefore, both administrative and civil law aspects coexist in international subcontracting cases. Whether the Subcontracting Act can be applied for public enforcement in international subcontracting is a matter of “international administrative law”, a conflict of laws question within the public (or administrative) law field. Korean literature on international subcontracting generally focuses on public law regulations, presupposing the territoriality principle of public law and its extraterritorial application as an exception, while also applying the nationality principle when necessary. This is the “international administrative law approach”. Those who follow the international administrative law approach do not explicitly state this, but they may consider that the Subcontracting Act applies to private enforcement in cases where public law regulations apply, that is, to the civil law aspects of international subcontracting (particularly claims for damages arising from tortious acts), or they may follow the private international law approach in such cases. This article first outlines the Subcontracting Act’s regulation of domestic subcontracting transactions (Chapter Ⅱ) and then examines its personal scope of application in an international context (Chapter Ⅲ). Despite controversy, the Constitutional Court’s decision holds that the Subcontracting Act applies when both the prime contractor and the subcontractor are domestic businesses. Since subcontract agreements are essential in international subcontracting, understanding civil law regulations requires an understanding of private international law designating the governing law of the subcontract agreement. Specifically, the Subcontracting Act imposes certain statutory obligations centered on subcontract agreements and also imposes civil, public, and criminal regulations for violations of these obligations. Therefore, the author divides the civil law regulations of the Subcontracting Act into those in international contracts (Chapter Ⅳ) and those in international torts (Chapter Ⅴ), and explores their respective scope through private international law. This approach can be called an “private international law approach”. Under this approach, the existence of a statutory obligation is determined by the governing law of the subcontract and whether the provisions of the Subcontracting Act that stipulate the prime contractor’s statutory obligations (the “statutory obligation provisions”) are internationally mandatory rules or not. This explanation is sensible since, if Korean law is designated as the governing law of an international subcontract under the Private International law Act of Korea, Korean law will apply as part of the governing law or as an internationally mandatory rules of the forum. On the other hand, if the governing law of an international subcontract is foreign law, only internationally mandatory rules among the statutory obligation provisions apply, and only public regulations or criminal regulations based on them are applied concurrently. Therefore, it is important to determine whether the statutory obligation provisions of the Subcontracting Act are internationally mandatory rules, and this must be examined on a provision-by-provision basis. Next, this article examines the public law regulations of the Subcontracting Act (Chapter Ⅵ) in an international context. Under the private international law approach, the resolution of the issue is dependent on whether the Subcontracting Act applies to civil law regulations since public enforcement under the Subcontracting Act also presupposes a violation of the statutory obligation provision. Finally, this article examines the similarities and differences between the Act on the Regulation of Terms and Conditions and the Subcontracting Act in an international context (Chapter Ⅶ). This is because the Act on the Regulation of Terms and Conditions, while similar to the Subcontracting Act, has significantly stronger civil law aspects. In short, there is little doubt that a private international law approach is appropriate for the civil law regulation of the Subcontracting Act. Meanwhile, opinions may differ regarding the public law regulation of violations of the Subcontracting Act. While the international administrative law approach, followed by fair trade law experts, is the primary topic of discussion in Korea, this article proposes a private international law approach and argues for its persuasiveness.