AC/DC 하이브리드 계통 내에서 발생하는 전자기 간섭 특성 분석에 관한 연구

권오승(Oh-Seung Kwon),송진솔(Jin-Sol Song),김종명(Jong-Myoung Kim),김철환(Chul-Hwan Kim) 대한전기학회 2023 대한전기학회 학술대회 논문집 Vol.2023 No.10-2

독점규제법의 현대화

권오승 ( Kwon Oh Seung ) 한국경쟁법학회 2016 競爭法硏究 Vol.33 No.-

Since 1981, the enforcement of Monopoly Regulation and Fair Trade Act(hereinafter “the MRFTA” or “the Act”) has contributed greatly to lessening anti-competitive or unfair trade practices. However the Act still can not play its role as a Magna Carta of market economy in Korea. Because the Act could not succeed in converting a monopolistic or oligopolistic market structure into a competitive one, and did not effectively prohibit anti-competitive practices and reduce the concentration of market power. In order to enhance the effectiveness of the Act, the author has endeavored to analyse comprehensively its problems and to find practical solutions for them. In this paper, the entire endeavor is called as the “modernization of the MRFTA.” It would not be surprising that this endeavor would invite in depth discussions and debates among the experts and interested parties in the competition law and policy circles. The purpose of this paper is to stimulate such debates and to encourage the initiation of the modernization process thereby particularly in terms of legislative amendment. Below is the summary of the author’s perspectives on the problems and solutions for the current MRFTA on substantive, procedural, and institutional aspects as well as statutory organization. For improving the whole structure of the Act, it is desirable to repeal Chapter 5(Unfair Trade Practices) of the Act, which deals with the unfair trade practices. At the same time, Chapter 6(Trade Associations) and Chapter 8(International Contracts) could also be deleted. This restructuring could contribute to make the Act function as a fundamental law of economic order in Korea. Furthermore, in order to enhance the effectiveness of control on concentration of economic power, it is strongly recommended that the sections with regard to the control on concentrations of economic power under Chapter 3(Mergers/Concentration of Economic Power) need to be relocated to the new separate chapter. And the sections prohibiting undue support practices between the undertakings or special related persons under Chapter 5 could also be moved to the same new chapter. This incorporation of both ex ante and ex post control under a single chapter could contribute to enhance the effectiveness of control on concentration of economic power. Substantive aspects of the modernization encompass a wide variety of subject matters under the MRFTA, including the purpose clause and the definitions clause. With regard to section 1(Purpose), it is recommended that unnecessary parts of the section should be deleted from the statute and that the term “consumer protection” in the section be changed to “consumer welfare.” Through this amendment, the purpose of the Act could be more clearly identified that the Act aims to increase consumer welfare by facilitating free and fair competition. Also, Paragraph 6(Resale Price Maintenance) under Section 2(Definitions) could be entirely deleted from the section. The standards of extraterritorial application of the Act could also be supplemented with more specific terms. In order to enhance the efficiency of the policy for transforming the anti-competitive market structures by the Korea Fair Trade Commission (hereinafter “the KFTC”), it is necessary to introduced a new system of regular monitoring and evaluating the implement of the policy into Section 3(Transforming Monopolistic/Oligopolistic Market Structure) of the Act. Furthermore, Section 3.2, a substantive provision on the abuse of dominant position, should introduce a general definitional term for what “abuse of market dominance” means. Sub-categories of such abusive conduct, e.g. exclusionary and exploitative abuses could be made explicit on the section with most common type of conducts for each category of abuse enumerated as illustration. Subparagraph 1, Section 4(Presumption of Dominant Position) of the Act could be left intact. However, subparagraph 2 of the same section needs to be changed to presume the existence of dominant position when a sum of two or less undertaking(s)`` market shares is 75% or more(except for any undertaking with less than 25% market share). Also, Section 5(Remedies for Abuse of Dominance) could be revised to explicitly mention structural remedies such as divestiture, lessening of entry barriers, etc. Paragraph 4(Presumption of Substantial Lessening of Competition), Section 7 of the Act could be amended to allow presumption of “substantial lessening of competition” whenever the total market shares of the merging/merged parties satisfy the market share requirement for the presumption of market dominant position. Also, Paragraph 1, Section 16(Remedies for Anti-competitive Mergers) could add an explicit legal basis for taking remedial measures structural in nature such as divestiture, sale of assets, and measures concerning intellectual property. Another point on Chapter 3 worth amending is to control “circular share-holdings” among three or more affiliates as a means of “general concentration” of economic power by a big business group. To effectively restrain such circular share-holdings, the current version of Section 9.2(Circular Share-Holdings) needs to be revised. Prohibition of circular share-holdings under Section 9.2 should be revised not only prospectively applicable to newly formed circular share-holdings but also to already-existing one. In order to prohibit various types of collusive behaviors among undertakings effectively, extending general definition of “unreasonable collusive behaviors” in Paragraph 1, Section 19(Unreasonable Collusive Behaviors) is strongly recommended. A new, more expansive definition should be broad enough to cover both explicit and tacit agreement, (conscious) parallelism, and concerted practices. The scope of Chapter 5 should be narrowed only to cover conducts harming competitive processes or having a nationwide economic or societal implications(e.g. abuse of superior bargaining power). Another types of conducts excluded from Chapter 5 could be regulated by other special laws on civil matters. The net effect of all these amendments would be to significantly relieve the present heavy burden of the KFTC which has to deal with a large number of “unfair trade practices”. Ensuring independence as well as enhancing the expertise of the KFTC also require revisions of the relevant provisions under the MRFTA. Non standing commissioners need to be replaced with standing commissioners. The number of commissioners should also be reduced to 5 to 7, with their term of office increased to 5 to 6 years. The staggered term system should be introduced for the purpose of enhancing the independence of the Commission. With regard to expertise, finding a way to improve staff members`` expertise(not only commissioners``) in terms of economic and legal analysis will be necessary. Pursuing both effectiveness and fairness in public enforcement at the same time is not an easy task as it seems. Better ways to ensure transparency and fairness during the investigation and internal review processes of the KFTC should be designed and implemented in the first place. On the other hand, the KFTC should be empowered to conduct compulsory investigations when they are necessary (e.g. investigating hardcore cartels). Guaranteing the procedural due process of respondents would require a reform of the current case management system by make it more adversarial in nature. Time limit to appeal from the KFTC``s final decision needs to be extended to 90 days as well. These kinds of reform would provide rationales for designating the Seoul High Court as having exclusive jurisdiction for appeals from the final decision of the KFTC which could legitimately be considered a quasi-judicial body. On the one hand, criminal enforcement of the Act should be limited to certain categories of serious violations of the law such as unreasonable collusive behaviors, abuses of dominant positions, concentration of economic power, and failures to comply with the KFTC``s cease and desist orders. On the other side, it would be important to extend the imposition of criminal penalties to natural persons(CEOs, executive officers, directors, etc.) who are either directly or indirectly involved in an illegal conduct. Meanwhile, the KFTC currently retains the exclusive authority to file a criminal complaint for a violation of the Act. Such broad authority should be curtailed so that its applicability is limited to the cases requiring policy decision-making by the KFTC. Finally, effective enforcement of the Act can be also achieved by active private litigation. Key facilitators for private litigation such as treble damages, class actions, and injunctive reliefs should therefore be introduced into the provisions of the Act.

경쟁질서와 사법상의 법률관계

권오승(Oh-Seung Kwon),이민호(Min-Ho Lee) 한국비교사법학회 2007 比較私法 Vol.14 No.1

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.

동아시아 공동체 형성과 경쟁법

권오승(Oh Seung Kwon) 한양법학회 2007 漢陽法學 Vol.21 No.-

In order for the soon-to-be formed East Asia Community to properly function as a single market, free and fair competition must be maintained in the market. To this end, legislative and institutional factors and fact-based elements that restrict free and fair competition must be eliminated. This, first of all, requires individual countries to establish laws which can remove such anti-competitive factors, and in the long run, community-level efforts, for instance FTAs, are also needed. The following three factors must be considered when drafting a community-level anti-trust law. First, from the substantial law aspect, the scope and subject of regulation need to be decided. Second, from the organizational law perspective, the format of the law enforcement organization must be considered. Third, with regards to the procedural law, how to establish the law enforcement procedure must be determined. Technical assistance to East Asian developing countries in the competition law and policy area has the role of fulfilling the need of the recipient country but at the same time, it benefits Korea by promoting international trade and investment though creation of an international cooperation network and harmony and convergence of competition law and policy. In addition, intra-regional technical assistance activities contribute to the establishment of East Asia Community. Thus far, technical assistance programs have been well received by the recipient countries, but there is a need to diversify and better organize technical assistance programs in the future.

경쟁질서와 사법상의 법률관계

권오승 ( Oh-seung Kwon ),이민호 ( Min-ho Lee ) 한국경제법학회 2006 경제법연구 Vol.5 No.2

독점규제법은 주로 공정거래위원회에 의한 시정조치와 과징금부과 등과 같은 공적 집행을 통해서 그 실효성이 확보되어 왔다. 그러나 이러한 공적 집행에는 한계가 있기 때문에, 독점규제법의 실효성을 제고하기 위해서는 사인에 의한 민사적 구제를 활성화할 필요가 있다. 그런데 사인이 사업자의 독점규제법 위반행위에 대하여 법원에서 다틀 수 있는 수단에는 그 행위의 효력을 부인하거나, 그로 인한 피해의 배상을 청구하는 방법, 또는 그 행위의 금지를 청구할 수 있는 방법 등이 논의되고 있다. 우선, 독점규제법은 경제질서의 기본법이기 때문에, 이 법에 위반하는 행위는 민법 제103조의 선량한 풍속 기타 사회질서, 그 중에서도 특히 경제질서에 위반하는 것으로서, 그 사법적 효력은 원칙적으로 무효라고 보아야 할 것이다. 다만, 그 행위를 무효로 하는 경우 거래관계에 상당한 혼란을 초래할 경우이거나, 위반의 정도가 미약하여 그 법률행위를 무효로 하는 것이 일방당사자 에게 지나치게 가혹한 경우, 또는 개별 규범의 성질상 그 위반을 무효로 하는 것이 적당하지 않은 경우에는 그위반행위의 효력을 부인하지 않고, 이를 유효라고 보아야 할 경우도 있을 것이다. 그리고 독점규제법상 손해배상제도는 2004년의 법개정을 통하여 상당히 보완되었기 때문에 장차 같은 법에 의한 손해배상청구가 활성화될 것으로 기대되지만, 우리나라에서는 아직 3배배 상제도나 집단소송제도와 같은 소제기를 촉진하는 유인 제도가 부족하기 때문에, 손해배상청구를 더욱 활성화하기 위해서는 이러한 제도를 도입할 필요가 있다. 그러나 이러한 제도들은 우리법상 손해배상제도 및 민사소송제도의 전체적인 틀에서 벗어나기 때문에, 그 도입 여부는 전체적인 손해배상제도 및 민사소송제도와의 관계를 고려하여 신중하게 검토할 필요가 있다. 한편 독점규제법상 손해배상제도만으로는 사인의 권리구제에 미흡한 경우가 있으므로, 이를 보완하기 위해서는 사인이 직접 법원에 독점규제법 위반행위의 금지를 청구할 수 있도록 하는 금지청구권의 도입을 적극적으로 고려해 볼 필요가 있다. 그런데 이 경우 불공정거래행위뿐만 아니라 시장지배적 지위남용행위 및 부당한 공동행위도 그 대상에 포함시킬 필요가 있으나, 기업 결합행위 및 경제력 집중의 억제 규정 위반행위는 여기에 포함시키지 않는 것이 바람직할 것이다. 그리고 사적 금지청구를 도입할 경우에는 법원과 공정거래위원회가 적절하게 협력할 수 있는 법적 장치도 함께 도입할 필요가 있다. 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 or 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, it 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 or economic power. In the event that injunctive relief is legislated, legislation of system cooperation between courts and the KFTC is also necessary.

EEC 조약 제 86 조

권오승(Oh Seung Kwon) 한국경쟁법학회 1990 競爭法硏究 Vol.2 No.-

독점규제 및 공정거래관련법의 집행시스템

권오승 ( Seung Kwon Oh ) 서울대학교 법학연구소 2010 서울대학교 法學 Vol.51 No.4

우리나라는 시장경제를 경제질서의 기본으로 삼고 있는데, 시장경제가 정상적으로 기능하기 위해서는 시장에 자유롭고 공정한 경쟁이 유지되고 있어야 한다. 따라서 국가는 자유롭고 공정한 경쟁을 유지, 촉진하기 위하여 1980년에 독점규제 및 공정거래에 관한 법률을 제정하여 시장지배적 사업자의 지위남용행위, 기업결합, 부당한 공동행위 및 불공정거래행위를 금지 또는 제한하고 있다. 그리고 사업자 상호간의 거래나 사업자와 소비자간의 거래에서 나타나는 불공정한 거래를 시정하여 공정한 거래질서를 확립하기 위하여 국가는 하도급거래나 가맹점 거래는 물론이고 약관규제나 할부거래 등과 같은 특수한 거래에 대한 규제도 하고 있다. 그런데 현행법상 자유로운 경쟁과 공정한 거래 및 소비자보호를 규제들은 공정거래위원회에 의한 행정적 규제와 아울러 당사자들의 사적구제를 통하여 실현되게 되어 있지만, 실제로는 사적 구제는 활발하게 이루어지지 않고 주로 공정거래위원회의 행정적 규제에 의하여 실현되고 있다. 그러나 공정한 거래나 소비자보호를 위한 규제가 지나치게 행정적 규제에 의존하고 있는 것은 바람직하지 않다. 따라서 공정한 거래질서의 확립이나 소비자보호를 위한 제도의 실효성을 확보하기 위해서는 공정거래 및 소비자보호 관련법의 집행시스템을 개선할 필요가 있다. 그 구체적인 방안으로는 당사자간의 사적 분쟁의 성격이 강한 불공정거래행위나 소비자거래에 대하여는 행정적 규제를 완화하는 대신에 경쟁자나 소비자가 법원에 스스로 구제를 청구하는 사적구제를 활성화하기 위하여 금지청구권을 도입하는 동시에 징벌적 배상제도와 집단소송제도를 도입하는 것이 바람직할 것이다. Competition law is regarded as the Magna Carta of market economy. The competition law is generally enforced through administrative procedures by competition agency and through private litigation by competitors or consumers and criminal sanction. However in Korea, the enforcement of competition law has depended mainly on the public enforcement by Korea Fair Trade Commission (KFTC) since 1981. As a result, the private enforcement of competition law is not well developed as in other developed countries. More special feature is that KFTC has also engaged in the enforcement of consumer protection laws which are characterized as special private law. This enforcement system of competition and fair trade laws and consumer protection laws in Korea had some merits and weakness. In order to ensure free and fair competition in market and to protect consumer more efficiently, it is necessary to improve the current enforcement system. As for public enforcement, the KFTC should focus its activity on the prohibition of anti-competitive behaviors such as abuse control of market dominant position, merger control and cartel prohibition. And for the effective investigation of cartels, it is desirable for KFTC to cooperate with public prosecutor more closely. The administrative enforcement by KFTC on unfair trade practices and unfair contract terms should be substituted by private litigation. Since unfair trade practices and unfair contract terms can be more effectively prohibited by private litigation than by public enforcement, if some institutions to stimulate private litigation such as treble damages claim and class action will be introduced.

“가맹사업거래의 공정화에 관한 법률”의 쟁점에 관한 고찰

權五勝(Oh-Seung Kwon) 한국기업법학회 2011 企業法硏究 Vol.25 No.1

The franchise of Korea was introduced in 1979 for the first time and it is spreading around quickly centered on restaurants through advance introduction of foreign brands and domestic companies. Along with these developments, the franchise act has been enforced since 2002 in order to eliminate the unfair trade practices that have been occurring in the franchise deals and for the franchisee and the franchisor to develop in balance but the trend shows that the mutual legal disputes is continuously increasing. Along with providing information systems engineering rewriting, the current franchise act has created various complementary devices such as adopting the rewriting the information engineering registration system and others so realistically, both parties are able to sign the contract equally but the reality is that the franchisees are suffering from considerable damage due to their lack of knowledge in franchise system and legal knowledge. We have suggested several ways to improve the problem so any dispute between the franchisor and the participating merchant can be prevented, develop with balance between, and for the franchises to be activated. Korea's current franchise act occupies most with regulations and penalties for participating in the franchisor that inflict damage through inequality of information and inequality of status. These types of regulations and penalties for the franchisor created a fair trade order for the balanced development of franchisor and the franchisee but on the other hand, this makes the franchisor to lose motivation for establishing the franchise to it can become a handicap for the activation of franchise. If there are no franchisor, there are no franchisee. As a result of restrictions on the fran chisor, an active creation of franchisor headquarters must be created so the entrepreneurship motivation of the franchisor not to lose their motivation to create franchise so they could contribute to national economy, the compensation for the regulatory will continuously developed in the future.

동아세아 공동시장의 형성과 경쟁법의 과제

권오승 ( Oh Seung Kwon ) 서울대학교 법학연구소 2005 서울대학교 法學 Vol.46 No.3

한국(韓國) 독점규제법(獨占規制法)의 역외적용(域外適用) -항공화물(航空貨物) 국제(國際)cartel 사건(事件)을 중심(中心)으로-

권오승 ( Oh Seung Kwon ) 한국경쟁법학회 2011 競爭法硏究 Vol.24 No.-