행정지도가 개입된 부당한 공동행위 관련 판례평석(判例評釋) (서울고법 2011. 6. 2. 선고 2010누21718판결)

Abstract

Government agencies give enterprises administrative guidance. Administrative guidance refers to the guidance, recommendations and advice. If the actions of those enterprises that follow such administrative guidance fall under Article 19 Section 1, the problem arises as to whether there has been a violation of the prohibition of such cartel. This is because although in theory, administrative guidance has no legal binding effect, in reality there are practical restraints in their freedom to act. The exemption of administrative guidance from the Fair Trading Act cannot be tolerated under the Organization Act. If such exemptions for cartel are allowed under the Organization Act, virtually all industrial component authorities will be able to state that acts of enterprises inside the applicable industry will be excluded from the Fair Trading Act on the basis of the Organization Act, thus causing a nullifying effect on the Fair Trading Act. In considering supreme court precedents and American supreme court precedents, in order to be allowed cartel from being established, 1) the administrative authorities must take specific and direct actions near disposal relating to cartel in order to realize their goals 2) proper administrative action legally related to enterprises through the supervision of administrative authorities must be done within the jurisdiction of the proper office 3) with the minimal necessary action, the legislation must be one that specifically acknowledges the exemption of enterprises that need a high degree of regulation from open competition 4) any other objectives of the administrative authority must be clearly made 5) there must be active supervision by proper administrative authorities 6) there is the requirement that enterprises, in performing according to proper administrative guidance, will not have any additional consultation. The exemption under Article 58 of the Law should be construed narrowly and strictly. However, in cases relating to administrative guidance concerning restriction of competition, government agencies should confer to the FTC in advance.