유통3법 과징금 제도의 주요 쟁점과 개선방안 - 과징금 산정 기초변수에 대한 비판적 고찰 -

초록

This article undertakes a comparative review of the penalty systems under the Koeran Distribution Law System: the Large Scale Distribution Business Act, the Franchise Business Act, and the Agency Business Act. It organizes and analyzes the issues at the conceptual, normative, and practical levels to explore future directions for improvement. The review reveals that these laws operate different penalty systems, with the core difference being the basic variables used for penalty calculation. The Large Scale Distribution Business Act employs the relevant supply price or rent and the proportion of the violation amount, whereas the Franchise Business Act uses relevant sales, and the Agency Business Act bases its calculations on the violation amount. The problem lies in the fact that this situation warrants examination from conceptual, normative, and practical perspectives. Conceptually, it is crucial to investigate whether the meaning of each basic variable is unclear, and normatively, whether they align with the principles of a rule of law state. This paper examines these issues and proposes unifying the different basic variables into a single variable. Such institutional improvement would eliminate conceptual confusion, meet the rule of law requirements for clarity and transparency in penalty calculations, and resolve practical difficulties in imposing proportional penalties when related supply prices cannot be determined. The choice of basic variable ultimately depends on the policy judgment of the competition authorities. This paper presents the spectrum, advantages, and disadvantages of the relevant sales-based and violation amount-based criteria, which could be critical considerations in making that judgment.

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