부당한 공동행위에 대한 과징금 산정의 실무상 쟁점

Abstract

This paper aims to raise several issues in practice regarding calculating administrative fine against unreasonable concerted acts based on theoretical approach to the purpose of the imposition of administrative fine and analysis on decisional practice of the Supreme Court of Korea, and seeks for the improvement methods thereto. The main points of this paper can be summarized as follows: Firstly, the purpose of the imposition of administrative fine can be understood as the achievement of optimal level of deterrence through the internalization of social harm. Due to the difficulty of measuring deadweight loss, one of the components of social harm, the practical method is to estimate the scale of illegal gains with which the amount of administrative fine is reviewed about whether or not it is balanced. Secondly, the base amount of the fine against unreasonable concerted acts is calculated by multiplying the relevant turnover of a violator by a prescribed imposition rate. This so-called relevant turnover-based method is set up as the proxy for simplifying the calculation mechanism of the administrative fine. Therefore, in calculating the relevant turnover resonable ways should be applied to make sure that the calculated amount by a normal imposition rate shall be an amount corresponding to the purpose of the imposition of fine. Thirdly, the Supreme Court of Korea regards a factor of goods included in contents of agreement as important for its judgment of the scope of the relevant goods required for the relevant turnover. Based on the precedents of the Supreme Court, several factors can be identified as those to be taken into account for whether the scope of the relevant goods can be extended to other goods than those included in contents of agreement as those affected by the violation directly or indirectly. Fourthly, for the purpose of the assessment of the severity of a violation by which the imposition rate is determined, a fining methodology should be developed which takes into account object-based assessment factors and effects-based assessment factors equally. Lastly, in case that there are special circumstances under which optimal amount of fine cannot be calculated by the current system adopted by the Korea Fair Trade Commission (‘KFTC’) at the adjustment stage in spite of no or little illegal gains, it is required that the KFTC should set the imposition rate reasonably at the base amount determination stage considering the scale of illegal gains or industrial and market factors affecting such.