중소기업공동사업에 대한 공정거래법의 적용 - 공정거래법상 적용제외를 중심으로 -

Abstract

This paper is concerned with the Antitrust Law regulation on collaborative Acts of Association of SMEs(Small and Medium Enterprises) with focus on exemptions from appling the Korean Monopoly Regulation and Fair Trade Act(hereinafter "Korean Fair Trade Act"). The collaborative Acts of Association of SMEs like collective purchasing and sales, joint research, collective insurance, collective information network etc. is based on Article 35 of the Korea Federation of Small Business Act. Trade Association in Korean Fair Trade Act means any combination of federation of Enterprises, regardless of the structure, formed by two or more Enterprises for the purpose of enhancing their common interests. The term trade association is applied to mutual-benefit, no-profit association of business firms engaged in the same or closely related field of business. At this point the Association of SMEs means trade association in Korean Fair trade Act. No Trade Association shall substantially restrict competition by engaging in any of the restrictions on improper concerned Acts(§19), restrict the present or future number of enterprisers in any business area, unreasonably restrain the business or business-related activities of member enterprisers, cause or abet enterprise to commit unfair business practices(§23) or to engage in resale price maintenance(§29). At the same time. the Korean Fair Trade Act provides for the exemption from appling the act. The most important immunity clauses relating collaborative acts of Association of SMEs in the Korean Fair Trade Act are Article 58 (Legitimate Actions taken pursuant to Acts and subordinate Statues) and Article 60 (Act of specified associations). Article 58 provides that it shall not apply to the rightful act of a firm or trade association conducted in accordance with any Act or any decree to such act. Article 60 also provides that it shall not apply to any acts of an association established in accordance with the specified requirements. To make efficient regulation on collaborative acts of Association of SMEs, the act and the guidelines relating to the exemption from appling the Korean Fair Trade Act should be amended towards clearness of requirements for exemption.