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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 No.3, 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

undertakings 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 consumers 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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