행정지도가 개입된 부당한 공동행위 관련 판례평석(判例評釋)

• 영문명: A STUDY OF PRECEDENT
• 발행기관: 중앙대학교 법학연구원
• 저자명: 박종흔(Park Jong Heun)
• 간행물 정보: 『법학논문집』法學論文集 第35輯 第3號, 217~236쪽, 전체 20쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2011.12.31

영문 초록

Government agencies give enterprises administrative guidance. Administrative guidance refers to the guidance, recommendations and advice. If the actions of those enterprises that follow such administrative guidance fall under Article 19 Section 1, the problem arises as to whether there has been a violation of the prohibition of such carte1. This is because although in theory, administrative guidance has no legal binding effect, in reality there are practical restraints in their freedom to act. The exemption of administrative guidance from the Fair Trading Act cannot be tolerated under the Organization Act. If such exemptions for cartel are allowed under the Organization Act, virtually all industrial component authorities will be able to state that acts of enterprises inside the applicable industry will be excluded from the Fair Trading Act on the basis of the Organization Act, thus causing a nullifying effect on the Fair Trading Act. In considering supreme court precedents and American supreme court precedents, in order to be allowed cartel from being established, 1) the administrative authorities must take specific and direct actions near disposal relating to cartel in order to realize their goals 2) proper administrative action legally related to enterprises through the supervision of administrative authorities must be clone within the jurisdiction of the proper office 3) with the minimal necessary action, the legislation must be one that specifically acknowledges the exemption of enterprises that need a high degree of regulation from open competition 4) any other objectives of the administrative authority must be clearly made 5) there must be active supervision by proper administrative authorities 6) there is the requirement that enterprises, in performing according to proper administrative guidance, will not have any additional consultation. The exemption under Article 58 of the Law should be construed narrowly and strictly. However, in cases relating to administrative guidance concerning restriction of competition, government agencies should confer to the FTC in advance.

목차

Ⅰ. 문제의 제기

Ⅱ. 사실관계 및 판결의 요지

Ⅲ. 부당한 공동행위

Ⅳ. 판결검토

Ⅴ. 여론(현실적 문제점)

참고문헌

[Abstract]

키워드

부당한 공동행위 행정지도 적용제외 책임감면 주행위이론 cartel administrative guidance exemption reduction or discharge of liability state action doctrine