비교법적 관점에서 본 공정거래법상 과징금의 억제력 강화방안
A comparative law perspective on strengthening deterrence of antitrust surcharges in Korea
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This paper provides the design for effective deterrence of an antitrust surcharge system in Korea with comparison to EU, the UK, Germany and the US (four competition authorities). To this end, we review the deterrence approach and internalization approach as a methodology to determine the optimal level of fines. Then we discuss the objectives of fines and legal basis and nature for imposing fines. We explore several steps in setting fines: (i) determination of base fines; (ii) adjustments (including aggravating and mitigating circumstances); and (iii) comparisons to limits. Four competition authorities refer to the relevant turnover or similar concepts as the basis for the calculation of the fine. In determining the amount of fines, four competition authorities take into account aggravating circumstances or mitigating circumstances. Common circumstances include: recidivism; the role of the undertaking in the infringement; ranking of the personnel involved; co-operation with the investigating authorities; and existence of a compliance programme. The legislative of frameworks of four competition authorities provide for a maximum amount of fines. Furthermore, four competition authorities consider the size of the undertakings in a way or another. Finally, we suggest several policy recommendations for KFTC. First, the objective of imposing surcharges should be to deter anti-competitive conduct and change the surcharge methodology accordingly. Second, KFTC should strike the balance between deterrence and predictability. Third, a corporate financial penalty should be unified as a surcharge. Fourth, KFTC should consider the size of undertakings when determining the level of surcharges.
Abstract
This paper provides the design for effective deterrence of an antitrust surcharge system in Korea with comparison to EU, the UK, Germany and the US (four competition authorities). To this end, we review the deterrence approach and internalization approach as a methodology to determine the optimal level of fines. Then we discuss the objectives of fines and legal basis and nature for imposing fines. We explore several steps in setting fines: (i) determination of base fines; (ii) adjustments (including aggravating and mitigating circumstances); and (iii) comparisons to limits. Four competition authorities refer to the relevant turnover or similar concepts as the basis for the calculation of the fine. In determining the amount of fines, four competition authorities take into account aggravating circumstances or mitigating circumstances. Common circumstances include: recidivism; the role of the undertaking in the infringement; ranking of the personnel involved; co-operation with the investigating authorities; and existence of a compliance programme. The legislative of frameworks of four competition authorities provide for a maximum amount of fines. Furthermore, four competition authorities consider the size of the undertakings in a way or another. Finally, we suggest several policy recommendations for KFTC. First, the objective of imposing surcharges should be to deter anti-competitive conduct and change the surcharge methodology accordingly. Second, KFTC should strike the balance between deterrence and predictability. Third, a corporate financial penalty should be unified as a surcharge. Fourth, KFTC should consider the size of undertakings when determining the level of surcharges.
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