입찰담합 유형별 과징금 산정방식의 제문제 - 공정거래법 시행령 제9조 제1항 단서의 해석론 및 관련매출액 중복 산입 쟁점을 중심으로

Abstract

This paper categorizes the types of bid collusion into three categories. First, in the so-called 'one-time bid-rigging', the contract amount of the bidding is added to the related sales to impose certain sanctions on the complementary bid (Type 1). Such complementary bidder may not have had direct benefits in the bid, but may have had an invisible indirect benefit. For depriving it, as a proxy variable, the contract amount of the bidding is included in the related sales of the complementary bidder. The underlying rule is Article 9 (1) of the Enforcement Decree of the Fair Trade Act, which is an exception to the principle that only the sales that are acquired by the self in the cartel. Second, it is a type that cooperate(complementary bid) with the successful bidders in order to distribute the bids divided into several (Type 2). The FTC has tended to calculate only contract amount of the bidding that was won, but the contract amount of complementary bids are included in the related sales from the cartel case of Honam High Speed Rail which was processed in 2014. However, the FTC revised the regulations so that the total amount of related sales for complementary bid is calculated up to twice the contract amount. Third, it is the type in which cartel is made on bidding to select 'multiple winners' (Type 3). For this type, the FTC has calculated only the amount of money that each party has won as related sales. However, there has been a case in which the sum of the contract amount of all the successful bidder is included in the related sales of each individual from the case treated in 2018. If this is going to be used in the future, for example, in the case of a bid of 10 winning bidder, related sales can be doubled to 10 times. In this paper, we review the interpretation theory of the bid-rigging regulation in relation to the issue of duplicating related sales.