보험사들의 부당한 공동행위에 대한 판례평석 - 대법원 2006.11.23선고 2004두8323판결

• 영문명: Case Review on Improper Concerted Acts by Insurance Companies
• 발행기관: 중앙대학교 법학연구원
• 저자명: 조성국(Cho Sung-Kuk)
• 간행물 정보: 『법학논문집』法學論文集 第30輯 第2號, 285~304쪽, 전체 20쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.12.30

영문 초록

  Ten domestic insurance companies decided to abolish some free “emergency services” from Jan. 1, 1998 and implemented the plan. Then they abolished five other free services one after the other and charged for them one after the other. Korea Fair Trade Commission(KFTC) investigated the matter and issued a cease and desist order and imposed surcharges on the companies. The companies brought the case before Seoul High Court, which rejected it. They appealed to the Supreme Court.
  Sec. 19(5) of Monopoly Regulation and Fair Trade Act prescribes “where two or more enterprisers are committing any of the acts listed in each subparagraph of paragraph (1) which practically restrict competition in a particular business area, they shall be presumed to have committed an improper concerted act despite the absence of an express agreement to engage in such act.” This legislation was affected by conscious parallelism developed in the United States cases. Parallel acts in the United States are one element of circumstantial evidences which agreement can be inferred from. Those are about factual inference. However, Korean Supreme Court ruled Sec. 19(5) is about legal presumption. For it, KFTC should prove two points; parallel acts and anticompetitiveness. The Supreme Court ruled KFTC succeeded in proving them. The companies resorted to the Sec. 58 of the Monopoly Regulation and Fair Trade Act. According to it, “［t］his Act shall not apply to lawful acts of an enterprise or an trade association conducted in accordance with other Acts and subordinate statutes.” They argued they followed administrative guidances by the competent authorities. However, the Supreme Court did not accept the argument to the effect that the section should be read narrowly.
  The ruling by Supreme Court is meaningful in that it clarified the meaning of the Sec. 19(5) and Sec. 58 and applied stringent standards to the cartel case.

목차

Ⅰ. 사건의 개요
Ⅱ. 공정거래법 제19조 제5항 부당한 공동행위 추정조항의 법리
Ⅲ. 대상 판결의 평석
Ⅳ. 결어
〈Summary〉

키워드

부당한 공동행위(Improper Concerted Act) 추정(inference) 정황증거(Circumstantial Evidence) 합의(Agreement) 적용제외(exemptions)