하도급법 위반행위 유형별 지급명령에 관한 연구 - 하도급법 제4조를 중심으로

Abstract

Fair Transactions in Subcontracting Act (the “Subcontracting Act”) was fundamentally enacted to strengthen subcontractor protection, and payment order under the legislation was instituted to provide quick relief to subcontractor injury. However, a remedial order under administrative law demands curing a past violation of a law. It is a specific administrative effect with the intent to restore law and order. Similarly, the payment order should also be interpreted and enforced under the same principle. For violations of Article 4 (Prohibition against Fixing Unreasonable Subcontract Consideration) Section 2 of the Subcontracting Act, the KFTC has in most cases imposed the difference from the previous price as the payment order. However, the Supreme Court has recently ruled that a payment order in the above manner is illegitimate under Article 4 Section 2 Clause 1 of the Subcontracting Act. The Supreme Court held that the price that becomes the standard for uniformly reducing the unit price cannot be conclusively found as the fair subcontract price, and, given the nature of violations of the applicable regulation, it is difficult to uniformly calculate the fair subcontract price between the principle contractor and subcontractor. Thus, a more careful examination of the scope of the payment order under the Subcontracting Act is called for. Subcontracting transactions are premised on legal relationships in civil law. Thus, in principle, the payment order under the Subcontracting Act should be the difference from the fair price had there been no violation. Of the specific acts of violation spelled out in Article 4 Section 2 of the Subcontracting Act, for those acts for which it is not clear what the fair price is given the wording of the law, and, those acts for which it is not easy to conclude that the price would have been found to be the previous price even if there was no violation, the payment order should not be the difference from the previous price. Applying this principle, in the case of Article 4 Section 2 of the Subcontracting Act, I believe a payment order in the above manner which orders paying the difference from the previous price is viable given the following: (1) by allocating a certain amount, the wording of the law in Clause 2 leaves room to consider the price before reduction as the fair price, (2) assuming cases in which there is no discriminatory treatment, it is highly likely that the previous transaction terms remain the same given the wording of the law in Clause 3, (3) there is room to consider the aggregate amount of direct construction costs as the fair price given the wording of the law in Clause 6, and (4) there is room to consider the lowest bid price as the fair price given the wording of the law in Clause 7. On the other hand, for the other acts under Article 4 Section 2, I do not believe that a payment order for the difference from the previous price would be allowed because the law does not make clear what a fair price is, and, even if there was no violation, it is difficult to conclude that the price would have been determined to be the previous price. Meanwhile, some might say that in these cases, the KFTC could order payment by arbitrarily calculating the “fair price.” However, that would not be appropriate under the current law interpretation. This is because there are almost no cases in which the KFTC has arbitrarily ruled on the fair price in its interpretation and enforcement of the MRFTA, and, in cases of acts of unfair support under MRFTA, in contrast to various evidence for what constitutes a “fair price” under legislation and related public announcements, tax law, etc., Article 4 of the Subcontracting Act does not provide a clear standard for how to calculate the fair price. In the mid to long term, we ultimately need a legislative solution. Under the current law, we must invigorate a punitive compensation system and subcontracting dispute resolution process under the Subcontracting Act, make the principal contractor face litigation risk and regulation risk squarely, and guide the principal contractor and subcontractor towards accordingly deciding on a fair price through discussion.