독점규제 및 공정거래에 관한 법률 제23조 제1항 제8호의 직접 적용 가능 여부 (대상판결 : 대법원 2008. 2. 14. 선고 2005두1879 판결)

Abstract

If the meaning of an unfair trade act prohibited under Article 23 (1) 8 of the Monopoly Regulation and Fair Trade Act is interpreted restrictively as one similar to acts stipulated under Article 23 (1) 1 through 7 of the Monopoly Regulation and Fair Trade Act where the particular act under dispute is seen from its effect or mode of commission, it does not violate the principle of clarity, since the acts falling under the above subparagraph can be foreseeable to a certain extent. As long as the types and criteria of the acts related to Article 23 (1) 8 of the Monopoly Regulation and Fair Trade Act were not provided in the Enforcement Decree of the Monopoly Regulation and Fair Trade Act, the business operator's act under dispute cannot be interpreted as constituting the act prohibited under Article 23 (1) 8 of the Monopoly Regulation and Fair Trade Act which is subject to sanction. The above provision should be viewed merely as providing an authority for enacting the Presidential Decree which stipulates types and criteria of unfair trade acts in response to fluctuations in the market circumstances and economic activities. It is because foreseeability should be enhanced by providing types and criteria of unfair trade acts clearly and in advance, as numerous circumstances arise where an unfair trade act is related to usual business activities of business operator at the market. The contents of Article 23 (1) 8 of the Monopoly Regulation and Fair Trade Act is too ambiguous as elements for sanctions(even where the criminal punishment is possible). The aforementioned Supreme Court Decision is a landmark case in terms of establishing a legal principle for the first time that the act brought under dispute cannot be regulated by a direct application of the Monopoly Regulation and Fair Trade Act as long as the Enforcement Decree of the Monopoly Regulation and Fair Trade Act does not provide for concrete types and criteria of the acts with regards to Article 23 (1) 8 of the Monopoly Regulation and Fair Trade Act.