공정거래법상 과징금 제도의 현황과 개선방안|RISS 상세보기

다국어 초록 (Multilingual Abstract)

The administrative fine system in the Monopoly Regulation and Fair Trade Act of Korea(the “Act“) seeks to deter the violator and other undertakings in the same market from repeating the same or similar types of infringements. Its validity from the functional perspective is supported by way of economic explanation with the theory and analysis model. However, for the difficulty and unreality of finding out the economically optimal level of deterrence in every specific case, it is necessary to develop the notion of proxy on which a normative approach is based. The current system adopts relevant turnover-based principle and step-by-step methodology which undergoes a calculation of the basic administrative fine stage, an obligatory adjusting stage, a discretionary adjusting stage, and finally a determination of the administrative fine stage.
The problem is that the calculation of administrative fines following the arithmetical rules contained in the Korea Fair Trade Commission(the “KFTC“)'s guidelines does not guarantee the result which corresponds with the legal principles such as those of proportionality and equal treatment. It arises not only from the KFTC's practice which largely depends on the internal guidance with insufficient grounds and data but from the guidelines's flaw which lacks the process enabling the administrative fine to take balance with the scale of improper gains as a statutorily obligatory consideration factor. This article suggests several practical ways including amendments to the guidelines by which the administrative fine system should be improved so as to enhance transparency and predictability and to promote consistency with the legal framework. This will help to relieve making mistakes of 'missing the wood for the trees' in determining the administrative fine.

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