경쟁질서와 사법상의 법률관계

• 영문명: Restraints of Competition in the Private Law Perspective
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 권오승(Oh-Seung Kwon) 이민호(Min-Ho Lee)
• 간행물 정보: 『비교사법』比較私法 제14권 제1호, 77~107쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.03.30

영문 초록

  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.

목차

Ⅰ. 서론
Ⅱ. 공적 집행
Ⅲ. 경쟁질서 위반행위의 사법상 효력
Ⅳ. 독점규제법 위반행위와 사인의 손해배상청구
Ⅴ. 독점규제법 위반행위에 대한 금지청구
Ⅵ. 결론
【참고문헌】
【Abstract】

키워드

독점규제법 경제질서 공정하고 자유로운 경쟁 시장지배 적지위 남용행위 부당한 공동행위 불공정거래행위 무효 손해배상청구 금지청구 3배배상제도 집단소송 Monopoly Regulations and Fair Trade Act Public Policy for Economy Fair and Free Competition Abuse of Dominant Position Cartel Unfair Trade Practice Invalidity Damage Claims Injunctive Relief Tremble Damages Class Action