동의명령제 도입에 대한 고찰

Abstract

In Korea, discussion on the introduction of a consent order system was launched in 2005 as a part of efforts to improve her business environment and gained momentum with the conclusion of the Korea󰠏US FTA in Faburary 2007. The Fair Trade Commission submitted a bill to revise Monopoly Regulation and Fair Trade Act(here in after ‘MRFTA’) to the National Assembly in 2008. However, the National Assembly passed an alternative amendment except for consent order in February 2009. However, a consent order system was included in Korea󰠏US FTA agreement, and therefore the legislation has only been postponed to the next opportunity. ‘Consent Order’ is known as a mechanism in which the relevant parties can quickly settle the case at issue, on condition that the enforcement promise not to investigate or accuse against the undertaking, on the other hand the undertakings agree to stop the challenged practices. In fact, it is well known that most of antitrust cases in the U.S. have been settled through the Consent Order of the Consent Decree. Now, it is in place in many part of the globe, including economies with the civil law system like the EU, Germany and Japan and is increasingly becoming one of global standards as a tool to resolve dispute. As the number of the cases which have been brought to the Fair Trad Commission is rapidly increasing in recent years, the procedural improvement for not only due process but also efficient treatment of flocking cases is rising as a pending task around the enforcement authority. However, despite all the merits and necessity of the system, its introduction should undergo careful examination over the potential negative impact on rule of law, due process of law, and third party protection. In order to successfully introduce the ‘Consent Order’ into Korea, detailed analysis on theoretical background and actual use is firstly required. Because it has formed on the basis of the judicial regulation of the U.S. and have various incentives which cause undertaking to utilize the system.