독점규제법 제3조의2 제1항 제5호 후단"소비자이익 저해행위" 금지의 위헌성 판단 -명확성의 원칙을 중심으로-
Constitutionality of the Prohibition of "act that may considerably harm the interest of consumers" in Monopoly Regulation and Fair Trade Act Art. 3-2 I (v)

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서울대학교 법학연구소
법학, Vol.49 No3 pp.241-280
소비자이익착취남용시장지배적 지위남용interest of consumersexploitative abuse독점규제법void-for- vagueness doctrinethe abuse of market dominance
When a market-dominant undertaking violates the prohibition of “act that may
considerably harm the interest of consumers” in Art. 3-2 I (v) of Monopoly
Regulation and Fair Trade Act(hereafter “MRFTA”), he will be not only slapped
with surcharges by the Fair Trade Commission but also punished criminally. As the
principle of nulla poena sine lege is applied in that case, the requirement of clarity
is stronger than other administrative regulations except one that would restrict
freedom of expression. On the other hand, as the subject matter of that clause is of
various kinds and is likely to change a lot by market situations, more concrete
norms cannot achieve the legislative goal of the MRFTA. Adding that, the clause is
applied to only market-dominant undertakings, who are deemed to have more
knowledge of abusive acts in advance than general people. So, the standard of
ambiguity should or need not be so strict.
The abusive acts in the MRFTA are divided in two kinds. One is exploitative
abuse and the other is exclusionary abuse. The former is market-dominant
undertaking’s act imposing the price or other trade condition which may harm the
interest of consumers or trade counterparts. But the Article 3-2 I (i), (ii) of MRFTA
regulates only exploitive abuse related with the price. A lot of other kind of
exploitive acts, for example imposition of harming trade condition, violation of right
of consumer’s choice etc, could be challenged under Art. 3-2 I (v). For that reason,
“the interest of consumers” in that clause must be understood in wide range of...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 49, Number 1/4 (2008)
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