사법적 관점에서 본 불공정 거래 행위

Abstract

This article examines how to understand the substantive provision of unfair trade practices under the Korean competition law and how to establish criteria for its interpretation and assessment. The discussion here starts with a understanding that a legal relationship with which competition law works basically premises a legal relationship between private persons and that competition law has developed by establishing substantive requirements to be applied to private law relationships based on the objectives extending from the perspective of co-ordination of interests to that of trade and market order. This understanding leads to the affirmative valuation for the role of judges as experts in enforcing private laws and producing case laws in the competition law field to the effect of revitalizing discussions on competition law from a private law perspective. This article is divided into 4 sections. Following this introduction, Part II explains that the objective clause of the Korean competition law functions as a principle to interpret and apply the substantive provision of unfair trade practices from the perspective of relevance to private law and that the legal aspects of unfair trade practices can be sought as an developed form of its own with a private law origin. Part III offers the examination of diverse substantive dimensions of unfair trade practices from the perspectives of those norms and assessment elements. In this part, it is suggested as an interpretative principle that recognition of supremacy of private autonomy-based legal formation is the premise for validating the intervention of competition law by way of unfair trade practices. Furthermore, the requirements establishing unfair trade practices are analyzed element by element by categorizing as violator, conduct and illegality. Finally, Part IV contains short conclusion.