공정거래법상 과징금 부과와 그룹책임(group liability)의 법리

Abstract

The meaning of “a single economic entity” or “de facto an undertaking” under Korean competition law is conceptualized differently according to the types of anti-competitive practices. Such a functional understanding of undertakings has never been incorporated in the procedural law and public penalties in Korean competition law regime. The definition of “undertaking” is a legal product which is to contribute to protection of effective competition, a direct goal of Korean competition law. The starting point of this article is that the term should be coherent in the enforcement of competition law. In Korea, it is another key issue whether a number of affiliated companies under Chaebol system could be deemed to build a single economic entity, especially when the KFTC is going to impose administrative fines on them. So far, only individual company that committed that challenged infringement has been subject to such fines. It makes a loophole in the effective enforcement of Korean competition law, considering the prevalence of Chaebols in national economy. The 9th Amendment of German Act against Restraints of Competition adopted a fundamental change named as “corporate liability” for the purpose of harmonization of German competition law to European monistic approach. Now another legal person, which belongs to a certain corporate group, that is an undertaking, and exercised (in)directly considerable influence on other affiliated companies, can be subject to criminal fines, if that undertaking violated the Act or gained illegal profits from it. The group liability doctrine needs further academic attention, in that the owner of Chaebol should hold liability for the infringements of a controlled legal person under certain circumstances. Whether the owner can be qualified as an undertaking is another issue. Control and liability should go together.