경쟁질서와 사법상의 법률관계

Abstract

The enforcement of the Monopoly Regulations and Fair Trade Act (hereinafter the “MRFTA") has been ensured primarily by public enforcement such as corrective measures and administrative penalties imposed by the Korea Fair Trade Commission (hereinafter the “KFTC"). However, such public enforcement may not cover all the violation of the MRFTA. Thus, it is important to activate private enforcement to enhance the effectiveness of the MRFTA. Private persons may argue the invalidity of a contract, claim damages or seek injunctive reliefs against practices violating the MRFTA. As the MRFTA is the fundamental law to secure the economic system, the practices violating the MRFTA should be null and void under the Article 103 of the Civil Act because they contravene the good morals and public policy, in particular the economic policy. However, the practices may be acknowledged as valid in spite of their illegality where the declaration of invalidity significantly impedes the assurance of trade or invokes excessive harm to the violating party though the violation is insignificant. It may also be improper to declare invalidity depending on the characteristic of the contravened provision. Damage claims based on the MRFTA is expected to increase in the future since the relevant provisions of the MRFTA were significantly modified in favor of plaintiff by the 2004 amendment. Further, the legislation of treble damages and class action would be necessary to activate private damage claims under the MRFTA. However, current damage claim system and civil procedure are not familiar with such legislations. Therefore, they should be reviewed carefully before introducing to our legal system, considering the entire frame of damage claim system and civil procedure. However, the damage claim may be an insufficient remedy for the injured party. Thus, the legislation of injunctive relief, by which a private person is entitled to file a suit to seek prohibition of practices contravening the MRFTA, should be considered positively. The injunctive relief should be allowed against abusive behaviors of dominant position and cartels as well as unfair trade practices, whereas it should not be allowed on the basis of violations in connection with mergers and concentration of economic power. In the event that injunctive relief is legislated, legislation of system for cooperation between courts and the KFTC is also necessary.