보건의료서비스 시장 내 EU 경쟁법의 역할에 대한 논의와 한국 경쟁법에 대한 시사점
A Study on the Role of EU Competition Law in Health Care Market and Implications for Korean Competition Law
0
조회
0
다운로드
0
인용
0
참고문헌
키워드
초록
The mechanism of the EU internal market has featured through economic interaction. The concept of rights and obligations of the EU institutions, Member States and economic actors in economic sphere are governed through general principles and norms. Since that, the EU protects a range of economic and social rights to balance between market interests and non-market interests on the basis of social market economy in the sense of Article 3 of TEU, in order to develop the sustainability of the EU single market. The EU health care service can be considered as a typical service sector with non-economic objectives in marketbased mechanisms. The importance and size of its market has grown, which can play a crucial role in market-based mechanisms. Therefore, The nature of market has characterized as a patchwork made up of various concepts and values. It is difficult to be analyzed simply in terms of cost and efficiency in applying and interpreting the relevant concept of competition law, and may also run inefficiently if relying based solely upon market economy. Although EU health sector is required through public intervention in order to result in optimized outcome, it is necessary to examine how the EU evaluates the economic nature of activities performed in the relevant service sector. In the case of the EU, the necessity of public intervention for the purpose of social service goal is not determined only by the concept of economic efficiency in light of anti-competitive behaviours under competition law, but rather holistically by the value of the general interests, solidarity and general principles of law. Furthermore, this article aims to shed light on the context embedded in EU norms that support to balance between protection of the health rights and legal basis of social service goals through public intervention, and examine the various social norms that are difficult to cover by the current principles of competition law by comparing legal constructive dialogue contained a range of social general interests and future direction. Then, it is reached the implications that can support to picture balanced solution among different service areas, which can ultimately suggest further direction on the development of Korean competition law.
Abstract
The mechanism of the EU internal market has featured through economic interaction. The concept of rights and obligations of the EU institutions, Member States and economic actors in economic sphere are governed through general principles and norms. Since that, the EU protects a range of economic and social rights to balance between market interests and non-market interests on the basis of social market economy in the sense of Article 3 of TEU, in order to develop the sustainability of the EU single market. The EU health care service can be considered as a typical service sector with non-economic objectives in marketbased mechanisms. The importance and size of its market has grown, which can play a crucial role in market-based mechanisms. Therefore, The nature of market has characterized as a patchwork made up of various concepts and values. It is difficult to be analyzed simply in terms of cost and efficiency in applying and interpreting the relevant concept of competition law, and may also run inefficiently if relying based solely upon market economy. Although EU health sector is required through public intervention in order to result in optimized outcome, it is necessary to examine how the EU evaluates the economic nature of activities performed in the relevant service sector. In the case of the EU, the necessity of public intervention for the purpose of social service goal is not determined only by the concept of economic efficiency in light of anti-competitive behaviours under competition law, but rather holistically by the value of the general interests, solidarity and general principles of law. Furthermore, this article aims to shed light on the context embedded in EU norms that support to balance between protection of the health rights and legal basis of social service goals through public intervention, and examine the various social norms that are difficult to cover by the current principles of competition law by comparing legal constructive dialogue contained a range of social general interests and future direction. Then, it is reached the implications that can support to picture balanced solution among different service areas, which can ultimately suggest further direction on the development of Korean competition law.
참고문헌 (29)
- 권오승, "독점규제법 이론과 실무" (2020), 법문사
- 정재훈, "의료․의약품 산업과 경쟁법" (2020), 홍진기법률연구재단
- 손혁상, "공정거래법 목적으로서의 ‘경쟁’에 대한 소고", 경제법연구, 16(1), pp.91~117 (2017), 한국경제법학회[DOI]
- 이준일, "사회적 기본권", 헌법학연구, 10(1), pp.449~483 (2004), 한국헌법학회
- 이준일, "사회보장영역에서 법률유보원칙 - 의회유보원칙을 중심으로", 사회보장법학, 3(1) (2014)
- Anniek de Ruijter, "EU Health Law & Policy - The Expansion of EU Power in Public Health and Health Care" (2019), Oxford University Press
- D. Schiek, "Transnational Solidarity. Concept, Challenges and Opportunities" (2019), Cambridge University Press
- H. Schweitzer, "The Historical Foundations of EU Competition Law" (2013), Oxford University Press
- Kyriaki-Korina Raptopoulou, "EU Law and Healthcare Services: Normative Approaches to Public Health Systems" (2015), Kluwer Law International
- Paul Craig, "The Lisbon Treaty: Law, Politics, and Treaty Reform" (2010), Oxford University Press
- Richard Whish, "Competition law" (2012), Oxford University Press
- Tamara K. Hervey, "Research Handbook on EU Health Law and Policy" (2017), Edward Elgar Publishing Ltd
- L. Hancher, "EU Competition and Internal Market Law in the Health Care Sector" (2012), Oxford University Press
- Miguel P. Maduro, "The EU and Human Rights" (1999), Oxford
- Vassilis Hatzopoulos, "EU Law and the Welfare State: In Search of Solidarity" (2005), Oxford
- Wolf Sauter, "State and Market in European Union Law, The Public and Private Spheres of the Internal Market before the EU Courts" (2009), Cambridge University Press
- Alec Stone Sweet, "Rights adjudication and constitutional pluralism in Germany and Europe", Journal of European Public Policy, 9(1) (2012)
- Coppel and O’Neill, "The European Court of Justice: Taking rights seriously?", Common Market Law Review, 29 (1992)
- C. Wehlander, "Services of General Economic Interest as a Constitutional Concept of EU Law" (2016), T.M.C. Asser Press
- Elise Muir, "The fundamental rights implications of EU legislation: Some constitutional challenges", Common Market Law Review, 51(1) (2014)
- Gareth Davies, "Subsidiarity : The Wrong Idea, in the Wrong Place, at the Wrong Time", Common Market Law Review, 43(1) (2006)
- Ioannis Lianos, "Competition Law for the Digital Era: A Complex System’s Perspective" (2019), BRICS Competition Law and Policy Centre
- Koen Lenaerts, "Defining the Concept of ‘Service of General Interest’ in light of the ‘Checks and Balances’ set out in the EU Treaties", Jurisprudence, 19(4) (2012)
- Malcolm Ross, "Promoting solidarity: From public services to a European model of competition?", Common Market Law Review, 44(4) (2007)
- M. A. Buijsen, "The legal significance of clinical guidelines in The Netherlands", Medicine and Law, 19(2) (2000)
- N. Schepp, "On Big Data and Its Relevance for Market Power Assessment", Journal of European Competition Law & Practice, 7(2) (2016)
- R. Binns, "Algorithmic Accountability and Public Reason", Philosophy & Technology (2017)
- Soonman Kwon, "Pharmaceutical Pricing in Asia" (2018), OECD Korea Policy Centre
- Tamara K Hervey, "Telling stories about European Union Health Law : The emergence of a new field of law", Comparative European Politics, 15(3) (2017)