獨占規制法上 合意推定 관련 審(判)決例 硏究

• 영문명: The Analysis of Cases on the Inference of Agreement in Antitrust Law
• 발행기관: 중앙대학교 법학연구원
• 저자명: 曺聖國(CHO SUNG-KUK)
• 간행물 정보: 『법학논문집』法學論文集 第31輯 第1號, 393~414쪽, 전체 22쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.08.30

영문 초록

  Cartels or improper concerted acts are the most threatening acts in market economy and are often referred to cancers of market economy. Competition authorities all over the world give priorities to the regulation of cartels in enforcement of antitrust laws. Improper concerted acts in Korea Monopoly Regulation and Fair Trade Act("MRFTA") requires three elements; plurality, agreement and restriction of competition. Among these elements, the most important issue is that how the presence of agreement can be proved.
  It is not easy to find the directive evidence of agreement such as contracts or witnesses. In many cases investigators seek to prove agreement through indirect evidence or circumstantial evidences. This means factual inference of agreement. Circumstantial evidences do not need to exclude all possibility that the entrepreneur acted independently. The test means only that there must be some evidence which would support a finding of agreement.
  MRFTA has the distinctive article, 19(5), related to the inference of agreement which other countries do not have. According to the article, "Where two or more enterprisers are committing any acts listed in the subparagraphs of paragraph (1) that practically restrict competition in a particular business area, they shall be presumed to have committed an unfair collaborative act despite the absence of an explicit agreement to engage in such act." There have been controversies over interpretation of this article. In 2002, Korea Supreme Court ruled that this article should be construed as the legal presumption clause of agreement. The Court clarified circumstantial evidences are not required for the legal presumption of agreement.
  However, the legal presumption tends to be too harsh to enterprisers. The Supreme Court has reversed legal presumptions in acts by independent business judgment, acts by price leadership or administrative guidance without meeting of minds. Some administrative guidances are indispensable in modern administration and have been effectively used in the process of economic development of Korea. The Supreme Court reversed the presumption of agreement not because of the presence of administrative guidance but because of the absence of agreement.
  I think that the legal presumption clause needs to be amended in a way that the meaning of the clause can be more clarified.

목차

Ⅰ. 서언
Ⅱ. 부당한 공동행위의 성립요건
Ⅲ. 합의의 사실상 추정
Ⅳ. 합의의 법률상 추정
Ⅴ. 결어

키워드

카르텔(cartel) 사실상의 추정(factual inference) 법률상의 추정(legal presumption) 행정지도(administrative guidance) 간접증거(indirect evidence)