공정거래법상 동의명령제도 도입에 관한 법적 고찰

Abstract

In Korea, discussion on the introduction of a consent order system to the enforcement of Monopoly Regulation and Fair Trade Act (hereinafter ‘MRFTA’) was launched in 2005 as part of efforts to improve her business environment, and the discussion gained momentum with the conclusion of the Korea-US FTA in February 2007. A consent order, first introduced by the United States, is now in place in many part of the globe, including economies with the civil law system like the EU (2004), Germany (2005) and Japan (1959) and is increasingly becoming one of global standards as a tool to resolve disputes. Under the consent order system, an enterprise subject to investigation or deliberation concerning a competition case voluntarily proposes corrective measures. Competition authority examines the proposals, and when the authority gives its consent to them, it terminates the concerned case. As to compared to the corrective orders system, currently usual ways for competition authority to deal with a case, the authority explores and makes determination about legality of a case and imposes corrective orders on the concerned enterprise if her determination is negative; if the enterprise is not satisfied with the decision, it can challenge the decision in courts. In the consent order system, however, competition authority does not determine illegality of a case but consults with the examinee about corrective remedies, thereby terminating the case upon implementation of the agreed remedies. Yet, the consent order system is certainly not an institution one may expect to find in a civil administrative law system based on the rule of law in that it seeks to resolve disputes on a voluntary agreement basis. Despite all the merits and necessity of the system, its introduction should undergo careful examination over the potential negative impact on constitutional principles like the rule of law, due process of law, and third party protection. That is, as administrative laws and regulations are forcibly executed and pursue public interests, administrative litigation has a far-reaching impact on the general public as well as the concerned parties. Therefore, administrative litigation should differ from civil litigation that aims to resolve disputes between private persons. Still, case handling through the consent order system is basically activated by administrative measures, so the consent order system has nothing to do with criminal sanctions or prosecution in its nature. This can explain the fact that the proposed amendment of the MRFTA to introduce consent order system would not apply to criminal violations for which competition authority shall consult with the prosecutor general, as well as clear and grave violations or multiple-party concerned cartel cases requiring prosecution pursuant to Article 71 of the MRFTA. Moreover, by ensuring transparent implementation and keeping in place the procedure to actively reflect the third party's opinion and stakeholders', the consent order system contains an institutional tool to ensure third party protection. While there was much to regret in the progress of the discussion in vain at the National Assembly concerning the introduction of the system, legislative body's need for prudence and contemplation is quite understandable. Going forward, it is desired that there would be more progress in the discussion in favor of the system introduction when the legislatures both in Korea and the US ratify the Korea-US FTA.