금융감독당국의 행정지도에 따른 보험회사의 공동행위에 대한 공정거래법 제19조 해석에 관한 연구

Abstract

As regarding the insurance companies' collaborative act based on the administrative guidance by Financial Supervisory Service, not only financial supervisory agencies but also Fair Trade Commission have regulate insurance companies. In other words, insurance companies are under dual regulation. It is undeniable that the Monopoly Regulation and Fair Trade Act can be applied to the insurance industry. However, when this Act applies to the case dealing with the insurance companies' collaborative act related with the administrative guidance by Financial Supervisory Service, the fact that there is de facto legal force(compulsory power) in the administrative guidance by Financial Supervisory Service should be considered. In insurance industry practice, this administrative guidance has almost absolutely compulsory power to the insurance companies. Therefore, insurance companies have no choice but fully following this guidance. The Fair Trade Commission must consider the overal situation that made insurance companies perform common act in evaluating the insurance companies collaborative act. With this consideration, the Fair Trade Commission must take into account the question of unfairness of the insurance companies' collaborative act in the material meaning. For this purpose, the distinct characteristics of insurance industry as one of the regulated industries should be considered and duly weighed. It is absolutely unreasonable that only the insurance companies burden the harm and loss of dual regulation which is caused by the collisions of polices between Fair Trade Commission and financial supervisory authorities. The modification of legal system as regarding regulations toward insurance industry between two institutions is urgently needed. The new provision and article that stipulate the legal basis of not only insurance companies' collaborative act but also administrative guidance by the financial supervisory authorities should be made and amended in the Insurance Business Act. In the meantime, the flexible approach by the Fair Trade Commission and courts is required, along with the consideration of distinct characteristics of insurance industry, in interpretation of requirement of exclusion from application of inside inspection guide and of the Monopoly Regulation and Fair Trade Act in order to alleviate the regulation risk of insurance industry.