공정거래법상 금지되는 정보교환의 해석론적 한계

Abstract

In 2020, the MONOPOLY REGULATION AND FAIR TRADE ACT(hereinafter referred to as “Fair Trade Act”) was amended in its entirety, and the section on ‘information exchange’ was newly added to the regulations on Illegal Cartel Conduct. This prohibits agreements to exchange competitively sensitive information between business entities, and it is now possible to presume an agreement to collude from the act of exchanging competitively sensitive information. However, the current Fair Trade Act does not define ‘information exchange’ or ‘act of exchanging information’. Although it is preferable to interpret and judge terms that do not have definitions according to common sense, the KFTC has established the ‘Guidelines for Examining Illegal Cartel Conduct Involving Information Exchange between Business Entities’ and defined ‘information exchange’ as ‘information informing’ in the guidelines. The above guidelines are in the nature of interpretive guidelines regarding the act of information exchange. It is thought that the KFTC considers that so-called concerted practices can be regulated through the interpretation of the current Fair Trade Act, and that unilateral information informing can also be regulated as concerted practices. It seems that the KFTC prepared the above review guidelines by referring to legislative precedents and case law on concerted practices in foreign competition law systems, such as the European Union and Australia, in anticipation of the enforcement of the revised Fair Trade Act. On the other hand, the dictionary meaning of ‘to give and receive’ in the Standard Korean Dictionary is ’to give and receive from each other’, but the KFTC, in the above examination guideline, defines ‘the act of giving and receiving information’ as ‘the act of informing information’, which is different from this dictionary meaning. The problem is that ‘giving and receiving information’ is a requirement for invasive administrative actions such as corrective orders and fines, as well as a component of criminal penalties. This is why it is necessary to interpret the term ‘giving and receiving information’ in a precise and delicate manner, rather than from the perspective of the need for discipline. According to Supreme Court cases, if the text of the law itself is relatively clear, other methods of interpretation are no longer necessary or limited. In addition, if the provisions underlying an invasive administrative action are linked to the components of a criminal penalty, the relevant provisions must be interpreted more strictly and cannot be expanded to the disadvantage of the party against whom the action is taken. Therefore, it is not in accordance with the textual interpretation to interpret ‘act of giving or receiving information’ as ‘act of informing information’ in the above examination guidelines. Furthermore, considering that Article 40(1) of the Fair Trade Act prohibits ‘agreements’ between business entities, interpreting ‘act of giving or receiving information’ as a unilateral ‘act of informing information’ is not in accordance with the logical and systematic interpretation. Finally, the purposive interpretation requires a ‘justification’ for the expansion, but there is no specific ‘justification’ other than the need for discipline. In short, the definition of ‘giving or receiving information’ as ‘informing information’ in the above examination guidelines needs to be revised. In addition, if there is a need to effectively regulate the exchange of information without reaching an ‘agreement’, it may be necessary to consider amending the law to regulate ‘concerted practices’.