전직금지약정에 대한 공정거래법 적용에 관한 시론(試論)

Abstract

A non-compete clause is a contractual term that typically blocks the employee from working for a competing employer, or starting a competing business, Non-compete agreements can raise competition law issues because they restrict a employees’ freedom to change jobs. FTC has proposed a Non-Compete Clause Rule (“the Proposed Rule”) that would apply Section 5 of the FTC Act to the non-compete clauses. The FTC believes that non-compete clauses negatively affect competition in labor markets and product and service markets, resulting in industry concentration. All non-compete clauses are per se illegal under the Proposed Rule. Therefore, the non-compete clauses would be void as violating Section 5 of the FTC Act. In addition, the scope of the exception is very narrow, recognizing only cases such as business transfers. The Proposed Rule has been significantly criticized, and FTC is now seeking the public comments. The Proposed Rule does not take into account business justifications and is over-regulatory. There has been little discussion on the application of the Korean competition law to non-compete clauses in Korea. However, considering the shortage of manpower in major industries, non-compete clauses that restrict the employee’s freedom to change jobs can affect the competition in the labor market and in major industries. Furthermore, given that non-compete clauses would be separate contracts which are different from employment contracts, and they regulate the legal relationship after the termination of the employment, it is possible to apply the Korean competition law to non-compete clauses. The non-compete clauses may be subject to the Korean competition law from two perspectives: (i) the perspective that the non-compete clauses prevent the competitors from recruiting necessary personnel in the labor market, and (ii) the perspective that the employer's superior position over the employees in terms of enforcement and bargaining power. In the case of (i), exclusive dealing can be considered as an abuse of a market dominant firm in that they have the effect of excluding the competitors. In the case of (ii), giving disadvantage may be considered as abuse of superior bargaining position. Even if the Korean competition law regulates the non-compete clauses, competition in the labor market should be prioritized over the protection of individual rights. The application of the Korean competition law should be in the direction of ensuring competition in the labor market and product and service markets by inducing innovation among the employers and facilitating the entry of new competitors. However, it is not appropriate to take per se illegal approach like FTC. When applying the Korean competition law, the reasonableness of non-compete clauses such as the protection of trade secrets, should be considered. The application of the Korean competition law to the non-compete clauses can contribute to the promotion of competition in the product and services market, and reduce industry concentration. As a result, consumer welfare can be increased.