「대규모유통업에서의 거래 공정화에 관한 법률」의 제정 의의에 대한 검토

Abstract

The legislation of the Law on Fair Trade in Large-Scale Distribution Industry has two meanings when viewed from the perspective of the regulatory framework of the Competition Law in a broad sense; firstly, it has newly equipped with a new regulatory measure to adjust the conflicting interests of related parties. Secondly, it has tried to overcome the limitations in enforcing the existing regulatory measures of Article 3-2 and 23 in Competition Law. As for the first meaning, the new measure should remain supplementary and temporary, although we have now broad-based consensus for the enactment of the special legislation. The reason is that the direct intervention in the adjustment of interests could impair the autonomy and dynamics of market. Namely, Competition Law as the basic rule of market economy should mainly focus on the establishment of competition order, which is expected to correct fundamentally the asymmetry in trade through the normal function of competition mechanism. As for the second meaning, we could easily agree that the legislation of the new law is right and necessary in that all the problems in enforcing the existing Competition Law cannot be solved at a single stroke. Nonetheless, at this juncture the limitations in applying the Article 3-2 and 23should be analyzed thoroughly and the way to overcome them should be sought promptly. Especially the issue raised when Article 3-2 of Competition Law is applied to dominant undertakings in demand side need to be dealt with importantly. Furthermore, not only the standard for proving unreasonableness of abuse and unfair practice but also the allocation of burden of proof seem to be more difficult even after the Posco-Case of the Supreme Court.