행정지도와 공정거래법의 적용제외 및 부당한 공동행위의 성립요건

Abstract

‘Administrative Guidance’ means governmental activities outside statutory authorization. In Korea, the government has traditionally guided private enterprises through highly complex systems of administrative guidance. The Korean legal environment has increased the effectiveness of administrative guidance in industrial policy as follow: “Korean informal regulatory process functions within a legal system that consists of a ministry's statutory authority limited by administrative rules and doctrines of judicial review that are designed as a check against arbitrary policies. In Korea, courts grant ministries' broad discretion in their regulatory methods because of vaguely worded statutes. Combined with low levels of judicial review, this broad discretionary authority insulates much of Korea's industrial policy from challenge.” Administrative Guidance is essentially a denotation for actions undertaken by a public official to persuade specific individuals or firms to behave in a certain manner which may often result in unlawful horizontal collusion and have invoked cease and desist orders from the Korea Fair Trade Commission. But recently such orders were canceled several times at the Supreme Courts or Seoul Court of Appeals on the ground that the guidances and the firms' co-operative actions were in accord with the ultimate goals of the Korean Competition Law or that agreements between firms did not exist. This Paper analyze the several administrative adjudications and judical decisions for defining the relationship between the administrative guidance and antitrust immunity