공정거래위원회 경고조치의 법적 성격에 대한 검토 -대법원 2013. 12. 26. 선고 2011두4930 판결을 중심으로- = Study on the legal nature of the warning decision of the Fair Trade Commission

다국어 초록 (Multilingual Abstract)

The Fair Trade Commission issues warning decision in case where the violation of law is minor. The resolution issued by the Fair Trade Commission delivered to the other party states that the FTC warns the party against a specific action but it is uncertain whether the warning has any legal effect. It is clear, however, that the warning is a confirmation of the fact that the business operator who received warning violated the law. In this regard, what matters is what kind of means of administrative litigation is available if the business operator wants to challenge the illegality of the warning. Traditionally, the court judged that warning is simply a factual act and not an act of disposition, which can become the subject of revocation litigation. However, the ruling by the Supreme Court, Ruling Number 2011두4930, issued on December 12, 2013, acknowledged the dispositive nature of warning and made a decision on the merits of the case accordingly in the revocation litigation. However, it is unclear whether, in this ruling, the Supreme Court acknowledged warning as an administrative act in a narrow and theoretical sense or as a powerful factual act, which is an act of disposition subject to revocation litigation. In any case, it seems difficulty to acknowledge warning itself as an administrative act in the narrow sense for two reasons: Firstly, the issuance of warning does not result in change in any rights and obligations. Secondly, imposing penalty points according to warning does not immediately change the legal status of the other party. Therefore, the reason the warning issued by the FTC is subject to revocation litigation is that the warning is considered a powerful factual act. What matters now is which means of relief should be used-revocation litigation or party litigation in public law. Under the situation where other types of administrative litigation besides revocation litigation are rarely used, expanding the concept of “disposition” to enable revocation litigation may be an effective legal remedy. However, if party litigation is used more actively, revocation litigation would not be necessary and the parties concerned could remedy their own rights more effectively since there is no limit to the period for party litigation. Moreover, it is desirable to facilitate the use of party litigation with no limit to litigation period considering that the legal effect of warning will be produced if there is any additional violation of law and the party concerned is subject to penalty.

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