경쟁정책과 중소기업정책의 조화를 위한 독점규제법의 과제

Abstract

Although competition policy and SMEs policy have overlapping goals andmethods, and are capable of being in conflict or harmony, thoroughexamination of the relation between two policies does not seem to be enough. Considering the realities that the competitiveness of SMEs has not beenimproved substantially in spite of the quantitative and qualitative developmentof laws and policies for SMEs, as well as that the difficulties for SMEs incompeting with large companies has not been getting better in spite of theenforcement of competition laws and policies, we might assume that thosetwo laws and policies have not been enforced harmoniously with encroachingeach other’s effects. If referring to Germany, policy means for protecting andnurturing SMEs ultimately aim to create the best environment for‘competition’, and try to strengthen the competitive powers of competitorsthrough increasing the level of competition in markets. Also, it is necessary tosatisfy the requirement of ‘market conformity’ meaning that all the policymeans should not distort competition. Reflecting on the relation between SMEs policy and competition policy, we cometo realize that the Korean competition law has several clauses for protectingSMEs, though it does not explicitly aim at it in Article 1. Among them, theimportant ones are, first, the exemption for cooperatives comprising of smallcompanies in Article 60 and, second, cartel approval for competitiveness ofSMEs in 2nd clause of Article 19, both of which are meant to support thecompetitiveness and countervailing power. However, those two have not beenactively utilized so far, and questioned in terms of not only usefulness butalso interpretation. Fundamentally, it is doubtful whether the former is proper mean which minimizes the distortion of competition, and it needs to beconsidered that the latter should be constrained not to restrain competition. Next, the regulations against abuse of market dominant position in Article3-2 and unfair practice in Article 23, which can be said that they areexpected to contribute to protect SMEs through regulating large companies,should be highlighted in that they are the best ways to correct SMEs’disadvantages for now. Furthermore, the assumption of substantial restraintof competition in 4th clause of Article 7 with similar purpose would be usefulin protecting SMEs’ business area against large companies’ aggressiveexpansion.