대리점법의 문제점과 향후 과제

Abstract

With the unfair practices in distributorship agreement becoming significant social issues and the necessity to regulate such practices being raised, the Distributorship Agreement Fair Trade Practices Act (DAFTPA) was enacted in 2015. The DAFTPA, which had been provoked by the so-called 'Namyang Dairy Products case' in 2013, had gone through a long line of pros-and-cons debates during the course of legislation. However, we still see that skeptical opinions are being raised with respect to the necessity of the legislation and the effectiveness of the enforcement. Also, it is criticized that the DAFTPA contains certain incomplete factors in terms of its legal structure and of its consistency with the Monopoly Regulation and Fair Trade Act (MRFTA) and various special laws. From comparative law perspective, it does not seem that a general law exists in foreign countries for purpose of regulating such distributorship agreement. Although we find a few relevant special laws in some foreign countries, such laws are only being enforced against certain industries within limited scope. Further, it is common understanding that the unfair practices are subject to the ex-post regulation under the competition law, if needed. Reviewing such foreign legislations, the DAFTPA is too comprehensive in its enforcement scope and it is hard to find any other legislation that is similar to the DAFTPA in terms of such broadness of the scope. In the meantime, it is also needed to amend the provisions on a continuous manner. It is expected that various problems may occur upon the practical enforcement of the DAFTPA because there has not been sufficient discussions and agreements during the course of legislation. In order to minimize such problems that may occur, we need to provide clear definition provisions on the meaning of the distributorship agreement in the DAFTPA so that it can be clearly distinguished from the provisions of prohibiting unfair trade practices of MRFTA. Also, we need to classify the unfair practices into more concrete types through a continuous analysis on distributorship agreement practices. Further, we need to refine the provisions regarding the standards for remedies in the DAFTPA so that such remedies can have effectiveness in its enforcement, while we make sure that such standards remain equity in terms of a comparison to the other relevant laws.