하도급법 위반행위의 위법성 판단기준 및 집행수단

Abstract

Subcontracting transactions can lead to cost saving, risk sharing, quality upgrading and competitiveness improving. However it is necessary for government to intervene the subcontracting relationship because principal contractors could abuse their positions in trade with subcontractors unfairly. The Fair Transactions in Subcontracting Act (hereinafter the “Subcontracting Act”) provides duties and obligations of the principal contractors to protect subcontractors. Part II of this Article looks into the illegality of offenses of the Subcontracting Act, especially fixing unreasonable subcontract consideration (Article 4) and adjustment of subcontract consideration due to change in Design, etc. (Article 16). And then I shift my focus into the enforcement means of the Subcontracting Act. In Part Ⅲ, I discuss the documentary fact-finding investigations on subcontract transactions introduced in 2010 to avoid principal contractor’s retaliation for subcontractor’s reporting to the Fair Trade Commission that the principal contractor has violated the Subcontracting Act. After looking into the orders for corrective measures or imposing surcharge as remedies, I explain the 3 year’s time limit for making remedies in the recently-amended Subcontracting Act. And I consider the adequateness of awarding punitive damages for the subcontractors of important offenses of the Subcontracting Act. Article 35(2) of the Korea Fair Transactions in Subcontracting Act has introduced treble damages for the victims of abuses of the acquired technical data by a principal contractor since 2011 revision. This is the first legislation of punitive damages in modern Korean law. I insist that the beneficiaries of punitive damages should be confined to the victims of intentional offenses of the Subcontracting Act. Finally, Part Ⅳ concludes by summarizing my suggestions that follow from my analysis.