공정거래법상 동의의결제를 통한 경쟁규제집행의 책임성 확보 방안

Abstract

Law enforcement can be executed by administrative restriction, charge of civil obligation, and criminal penalty in order to accomplish the purpose of the Monopoly Regulation and Fair Trade Act while it is mainly operated by administrative restriction such as corrective order or fine in Korea. Since the consent order system is not subject to restriction based on judging illegality of an act by the Korea Fair Trade Commission, the acting businessman can be exempted from any restrictions for the act. In this regards, it was pointed that the consent order system can be seen as too-enterprise-friendly since its introduction, thus corrective measures, which are in par with the said restrictions, would be prepared for legally illegal acts as the resolution. However, the execution of the Korea Fair Trade Commission's resolution for judging the appropriateness of corrective measures is operated by donating fund from business operators. So it is being under controversy for the exact nature of the fund since it is not a damage relief fund but the fund for general public's interest. The execution of consent order is conducted for the considerable amount of time and required fair watch on performance of a duty while the foundation being established by funds from business operators became the main agent of the watch on performance of a duty for consent order. Since the foregoing can be seen as the concerned party conducts the watch on performance of a duty for consent order, the credibility of execution of consent order and the responsibility of administration can be hampered. It is desired that the Parents Patriae Action under the Monopoly Regulation and Fair Trade Act shall be adopted for business operators not to be exempted from civil responsibility in order to enhance the responsibility of execution by consent order even if the business operators conduct the consent order so the competent court can intervene the process of executing the consent order finalizing the civil responsibility for the business operator whereas the watch on performance of a duty for consent order shall be conducted by an independent third organization. It is necessary that the concerned person, specially including the representative of consumers, who are on the opposition side with the business operator, shall be included in the organization.