하도급법의 집행상의 쟁점

Abstract

The purpose of this article is to examine the key issues of the public enforcement and private enforcement of Fair Subcontract Transactions Act(hereinafter “FSTA”) with regard to the recent Korean Supreme Court cases and legislative amendments. The Court has interpreted the goal of the corrective measures in FSTA narrowly as the removal of the results caused by the violation and has found that the Korea Fair Trade Commission(hereinafter “KFTC”) not only cannot issue an order to pay the subcontract payment but also cannot issue an order not to repeat the violation if the contractor had paid the unpaid payment before the corrective measures were issued. In response, FSTA was amended and corrective measure prohibiting the repetition of the violation was introduced. We expect that corrective measures against repeated violations will become more effective. For the quick and effective restoration of the fair subcontract transactions order, KFTC must utilize the corrective measures imposing the “duty to act” more actively. Mere affirmation of illegality or imposing a “duty not to act” will not suffice on some occasions. The nature of surcharges imposed on the non-performance of duty to pay or unreasonable determination of subcontract price are mainly the recovery of unjust enrichment. But the nature of surcharges imposed on the violation of the duty to provide written subcontract documents in advance or the unreasonable demand of technology-related materials are primarily punishment. Recently, Korea Supreme Court recognized the damages liability based on section 750 of the Civil Code with regard to the violation of FSTA. There is no reason not to include general damages clause in FSTA considering that there is a general damages clause in Monopoly Regulation and Fair Trade Act and there is no reason to provide damages only with regard to the demand or misappropriation of technology-related materials. The punitive damages system can serve well as a means to deter ‘invisible violation’ where subcontractors with high degree of economic dependence on the contractors do not report the violation or even refuse to cooperate with the KFTC investigation for fear of retaliations. It also helps KFTC to utilize its limited resources for enforcement more efficiently. Under the Korean legal system, the excessive litigation or the excess liability seems unlikely. For the time being, it is appropriate to introduce punitive damages only to the type of violations such as the misappropriation of technology-related materials where ① subcontractor suffers irreparable damages from the violation and cannot recover fully with ex-post compensation, and ② the violation incurs continuous harm to the subcontractor. The award of punitive damages to the unreasonable inducement and hiring of the subcontractor’s employees is not appropriate in terms of free competition in the market for employment and the freedom to choose occupation of the employee. It might be necessary to apply punitive damages to the unreasonable determination of subcontract price and the unreasonable reduction of price, but considering the balance with the regulation applied to pricing abuses of dominant enterprise, it will make sense only if it is done after, or at least at the same time as, the pricing abuses of dominant enterprise become subject to the punitive damages.