공정거래위원회의 경쟁주창

Abstract

Market competition is not only deterred by private businesses, but is also disrupted by public regulatory interventions, regulatory legislation, and other rulemakings. However, public regulations differ from private business practices. Even when an existing public regulation may seem to contradict with the concept of market competition, it is likely that the public regulation was introduced to address a different type of market failure which competition law does not adequately cover. What might be considered anti-competitive when done by private parties may be treated differently by the government when done through public restraints. Accordingly, in many cases it is difficult to legally assign blame to a private business practice that was affected by the central or local government regulations. Thus, as to public restraints and actions of businesses pertaining to such public restraints, there was a clear need for effective facilitation for market competition via means other than enforcement of competition law. The concept that arose in response to this need is “competition advocacy,” which refers to the measures that are applied where an enforcement of competition law is deemed inappropriate. The Korean experience with competition advocacy, given the scope of power granted to the Korea Fair Trade Commission(“KFTC”), provides a unique experiment for a broader set of advocacy powers for competition authorities worldwide. Against this background, this article is written for the purpose of providing an overview of the substance and the application of the competition advocacy and to seek a more objective view on the competition advocacy system. In chapter II, this article analyzes the institutional framework from which the competition advocacy stems. In chapters III and IV, the article provides an overview of the KFTC’s activity in the context of the relationship between competition advocacy and competition law enforcement. In chapter V, the article objectively evaluates whether the role of competition advocacy is carried out for the rightful purpose within the given institutional framework. This article concludes by considering what seems to be the lesson for other jurisdictions and suggests that the KFTC must undertake competition advocacy in a manner appropriate for promoting pro-competitive environment.