계약자유와 공정거래

Abstract

In Korea, legal order is based on private autonomy, and the private autonomy is realized through the freedom of contract. And economic order is based on the market economy. In order for the market economy to function well, free and fair competition should be maintained in the market. For the purpose, the Monopoly Regulation and Fair Trade Act prohibits the various restraints of competition and unfair trade practices. The freedom of contract is permitted within the limit of compulsory laws and public order. Since the violation of the law generally corresponds to the act against the core elements of public order, the judicial effect is invalid. However some of acts that violate the law may not be regarded against public order, and all of them will not be considered valid, but in case where the self-determination of economic inferior party is infringed, it would be reasonable to consider invalid, if the term of contract is judged unfair from the point of view of objective third party in accordance with the notion of fair contract. As a criterion, the voluntary provisions in civil law, the principle of good faith and the prohibition of abuse of rights may be used.