공정거래법상 환경적 지속가능성 가치의 수용 가능성

Abstract

It is common to see that the purpose provisions of Article 1 of the Fair Trade Act consist of a structure of means, direct and ultimate purposes, and it is the relationship between direct and ultimate purposes that should be noted in relation to non-competitive values such as environmental sustainability. In the conventional discussions, the ultimate purpose was not given much meaning due to legislative problems that existed in the ultimate purpose, but it seems difficult to deny its significance, at least in terms of legal interpretation. Rather, in relation to Article 119 (2) of the Constitution, if interpreted in a constitutional-consistent manner, it seems reasonable to recognize more practical significance to the ultimate purpose. This is consistent with the attitude of the Supreme Court, and we should also take into account the realistic background that it is difficult to avoid competition with values outside of competition in the application of the Fair Trade Act. If so, the possibility of embracing the value of environmental sustainability as the content contained in the purpose of the Fair Trade Act is open, and the basis for its interpretation can be found, especially in the ‘balanced development of the national economy’. Competition that the Competition Act seeks to protect does not have to be realized without any restrictions in itself, and the degree or aspect of realization of competition can be defined by purposes or values other than competition itself. Discussions related to sustainability can also be said to have the meaning of resetting the direction of competition to be pursued within the entire value system pursued by our legal order. There are three ways to accept environmental sustainability within the Fair Trade Act in theory. These include exclusion, exemption, and exception. Under the Fair Trade Act, it is possible to recognize two ways: the exclusion in Article 116 and exceptions in individual prohibitions. Which method is relatively appropriate can be judged in the light of the purpose of the Act. If the sustainability value can be drawn from Article 1, it can be subject to balance against the effect of restricting competition. The ultimate purpose, which is interpreted as being superior to the direct purpose of fair and free competition, clearly suggests the possibility that the Act can be open to non-competitive purposes or values such as environmental sustainability. If so, it comes to the conclusion that the value of environmental sustainability under the Act is acceptable primarily through the exception of prohibition. If the sustainability value is independent of the purpose of the Fair Trade Act, the priority of application should be determined through balancing between the two purposes or values. In judging this, the legislator's value decision should be considered important, but if it is not clearly discovered, the FTC, a competition authority, has the power to coordinate harmoniously between competing policies, which is the implication of the “justif cation” requirement in Article 116 of the Act. If the Competition Act is the basic law of economic order, it will eventually be the role of the competition authority to establish priorities and consistent relationships between policies in a situation where various dimensions of economic policy intersect.