중소사업자 보호와 관련한 거래상 지위남용 규제 법률의 고찰

Abstract

Unfair trading practices were the most common type of cases among the record of processed cases related to the Fair Trade Act, and among them, abuse of bargaining position were the most numerous. In general, when considering the real market as an incomplete competitive market, bargaining positions occur in most business relationships, and persons with the superior position are able leverage their position to their advantage, and thus, excessive practices of abusing their position including price and volume control can cause disputes with trading partners. Such practices of abusing bargaining position are regulated by article 23 clause 1 of the Fair Trade Act. The Subcontracting Law, the Fair Franchise Practices Act, Large-Scale Retailers` Fair Trade Practices Act, and the Authorized Retail Trade Act, which regulate abuse of bargaining position, a type of unfair trade practice, by restricting them to particular areas are in line with regulations that regulate abuse of bargaining position and shares the commonality of being elevated to a law after being established as a public notification as a special unfair trade practice. Excluding Japan, it is hard to find legislation cases comparable to abuse of bargaining position regulations, and although outwardly they are required to regulate impediments to fair order of competition, they raise issues on regulatory justification in terms of unclear boundaries with pure civil disputes. However, the government is obligated to protect and cultivate small and medium sized enterprises in accordance with the constitution, and is able to regulate and coordinate abuse of economic power. Furthermore, if abuse of bargaining power is resolved through civil methods of resolution by highlighting the principle of private autonomy, then our current litigation system has some limitations considering the fact that no Discovery System or punitive damages system is in existence. So, it is necessary to regulate abuse of bargaining position through laws related to fair trade practices. Considering the limitations and resolutions commonly shared by laws on abuse of bargaining position, it is necessary to improve the structure of failing to report illegal acts and the insufficient provision of information which occurs at the beginning stage of trade. In order to resolve the consequent side-effects of the widening gap between large enterprises and small and medium sized enterprises, administrative regulations in the area of abuse of bargaining position must be strengthened along with the provision of incentives following compliance and the supplementation of the litigation system.