대리점법에 대한 법리적 검토

Abstract

Acts, following the Constitution, form the basis of a nation. They should therefore be legitimate and justifiable in terms of process and substance, remaining steadfast notwithstanding political agenda or sentiment. In this regards, the Fair Supplier-Vendor Trade Practices Act (“FSVTPA”), newly enacted on December 22, 2015, poses many problems. Overall, it is similar to a set of existing “fair trade practices” laws, including the Large-Scale Retailer’s Fair Trade Practices Act. It does not, however, deserve to be a standalone law. For example, provisions regarding “prohibited practices” under Chapter 2, which play an essential part in the FSVTPA, actually overlap with Article 23(3) (unfair business practices) and Article 23-3 (anti- retaliation) of the Monopoly Regulation and Fair Trade Act (“MRFTA”). Its penalty provisions, which are no more stringent than those in the MRFTA, also do not carry additional meaning. Certain other non-redundant provisions such as Article 5 (a supplier’s obligation to execute a vendor agreement in writing), Article 11 (prohibition of refusal to confirm order histories) and Article 25 (monetary penalties), are not so practically enforceable or even run the risk of being unconstitutional. The FSVTPA is aimed at fair transactions between merchants, who are more sophisticated than an average person which the Civil Code addresses. Commercial transaction laws (applicable to relationship between merchants) have different legal principles from consumer protection laws (applicable to relationship between a merchant and consumers, or between natural persons). Nevertheless, the governmental power is tempted to intervene in seemingly unconscionable bargains between merchants, beyond the scope of civil remedies such as damages or nullification. The FSVTPA has thus impaired the fundamental principle of private autonomy in commerce and distorted the public and private law system. Fair trade practices laws should be limited in function and triggered only when the governmental intervention is highly necessary. Furthermore, lack of professional review resulted in several legislative errors: while the FSVTPA generally applies not only to resale but also to consignment sale, provisions regarding “prohibited practices” fail to refer to consignment sale; while it generally applies not only to goods transactions but also to service transactions, the term “service” is often omitted in detailed rules. The FSVTPA was enacted by an abrupt political compromise between the ruling party and the opposition party. Professional or academic specialists had not been given the chance to review and refine its provisions. In consequence, it contains a number of non-legal or ungrammatical terms. The FSVTPA, often framed as an economic democratization law, is in fact a bundle of legislative defects. Unfair trade practices between suppliers and venders could have been addressed by reinforcing the MRFTA. Rather, the flimsy law that politicians created for a political show has damaged the integrity of Korea’s legal system, and confused law enforcers and distribution companies. Just as a firm’s performance is evaluated on the basis of its product quality, so a nation’s legislative capacity depends on how systematic and complete its laws are. Unlike defective products, defective laws cannot be returned or recalled. The National Assembly should seek a prompt and immediate solution to remove the legislative disorder the FSVTPA has caused so far.