공정거래법의 사적집행제도로서의 사인의 금지청구제도

• Published in: 경쟁법연구 Vol. 39; pp. 33 - 65
• Main Authors: 홍대식, Hong Dae Sik
• Format: Journal Article
• Language: Korean
• Published: 한국경쟁법학회 31.05.2019
• Subjects: Claims for damages; Corrective actions; Infringements; Injunctive relief system; Private enforcement; Prohibition or prevention; Unfair trade practices; 금지 또는 예방; 금지청구제도; 법학; 불공정거래행위; 사적집행; 손해배상청구; 시정조치; 침해행위
• ISSN: 1598-2335; 2671-6402
• DOI: 10.35770/jkcl.2019.39..33

The government’s entire amendment (hereinafter ‘amendment’) to the Monopoly Regulation and Fair Trade Act (hereinafter ‘Fair Trade Act’) submitted to the National Assembly on November 11, 2018 contains the introduction of the injunctive relief system. If the relevant content of the amendment is enacted as legislation, the Fair Trade Act will be equipped with the injunctive relief system in addition to damages compensation system and the triple compensation system, thus completing the framework of private enforcement systems. Against this background, this paper first examines whether the injunctive relief system is permitted by general principles of the civil law and, if so, on what requirements based on theories and case law doctrines of the civil law and judicial precedents in cases of preliminary or final injunction claims for violation of Fair Trade Act (Ⅱ). After developing the interpretation theory of the injunctive relief system introduced in the amendment in the order of the subject of the claim, the other party, the object act, the constitution requirements, the nature, the content and the general procedure (Ⅲ), the conclusion will be drawn (Ⅳ). The injunctive relief system is a system that allows a person who injured or has a risk of being injured by unfair trade practices to file a injunction claim against an enterprise or a enterprise association that commit or are likely to commit a violation. The content of the injunction claim is the prohibition or prevention of infringements against oneself. The scope of prohibition or prevention is set to the extent necessary for the victim’s relief. Prevention claims as well as prohibition claims are recognized. Therefore, if this system is introduced, it will be able to file injunction claims not only in the cases of continuing infringements that have already occurred, but also in the cases when infringements have been terminated but are likely to occur again or infringements do not occur yet but are likely to occur. The injunction claims are most likely to be filed when the Korea Fair Trade Commission’s corrective actions are not expected to be appropriate or there is no room to wait for it, unlike claims for damages. Therefore, in the case of unfair trade practices, stand-alone actions, which are relatively rare compared to follow-on actions, can be an opportunity to be activated. In this respect, the introduction of the injunctive relief system for unfair trade practices is also meaningful in terms of effective allocation of enforcement resources.