공정거래법상 금지청구

Abstract

At first prohibitory injunction in the Korean Anti-trust law aims at remedies for harms caused by unfair trade. It is natural that the object of anti-trust law should be thought with characteristics of remedies in the enforcement even though anti-trust law endowed private person with the right of prohibitory injunction claim. In this sense the harm by the unfair trade should be interpreted by the literary and purposive method. The other inhibitory types in the anti-trust law and lower statutes like the subcontracting act can be the target of the prohibitory injunction as long as they can be subsumed under the unfair trade in the anti-trust law. To construe the unfairness in the unfair trade, we can use the total circumstances test including the details of unfair trades, standard of trades, the effect against trade orders as the enlarging guideline and the restriction of competition, the difficulties in business, victim's market share as the limiting guidelines as well. We can accept the harm of competitors, consumers, counter-parties as caused by the unfair trades. When we deal with suspensions of unfair trades, possibility of relief through just damages and the disadvantages of the offender, we have to consider not only the limit of prohibitory injunction and necessary reasons in the provisional disposition, but the object of deterrence of the unfair trades. This kind of request is the same in the US and Japan. And to easily accept the complaint of conractual basis by the offender could result in the violation of fairness and market economy which are premises of private autonomy. It is necessary to maintain a balance with the existing injunctions while maintaining the unique purpose of the anti-trust law in the court practices of prohibitory injunction.