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“가맹사업거래의 공정화에 관한 법률”의 쟁점에 관한 고찰
權五勝(Oh-Seung Kwon) 한국기업법학회 2011 企業法硏究 Vol.25 No.1
The franchise of Korea was introduced in 1979 for the first time and it is spreading around quickly centered on restaurants through advance introduction of foreign brands and domestic companies. Along with these developments, the franchise act has been enforced since 2002 in order to eliminate the unfair trade practices that have been occurring in the franchise deals and for the franchisee and the franchisor to develop in balance but the trend shows that the mutual legal disputes is continuously increasing. Along with providing information systems engineering rewriting, the current franchise act has created various complementary devices such as adopting the rewriting the information engineering registration system and others so realistically, both parties are able to sign the contract equally but the reality is that the franchisees are suffering from considerable damage due to their lack of knowledge in franchise system and legal knowledge. We have suggested several ways to improve the problem so any dispute between the franchisor and the participating merchant can be prevented, develop with balance between, and for the franchises to be activated. Korea's current franchise act occupies most with regulations and penalties for participating in the franchisor that inflict damage through inequality of information and inequality of status. These types of regulations and penalties for the franchisor created a fair trade order for the balanced development of franchisor and the franchisee but on the other hand, this makes the franchisor to lose motivation for establishing the franchise to it can become a handicap for the activation of franchise. If there are no franchisor, there are no franchisee. As a result of restrictions on the fran chisor, an active creation of franchisor headquarters must be created so the entrepreneurship motivation of the franchisor not to lose their motivation to create franchise so they could contribute to national economy, the compensation for the regulatory will continuously developed in the future.
권오승 ( Oh Seung Kwon ) 한국경쟁법학회 2011 競爭法硏究 Vol.23 No.-
referred to as the "Act") since 1980. In order to promote free and fair competition, the Act prohibits the abusive conducts of a market dominant position, as well as cartels, anti-competitive mergers and acquisitions, and unfair trade practices. It has been 30 years since the Korea Fair Trade Commission (herein after referred to as the "KFTC") has enforced the Act. The KFTC has been faithfully fulfilling the role of "guardian of the market economy." The 30 years long activity of KFTC for enforcing the Act has been estimated very positive and successful. It contributed very much to change unfair trade practice into fair one and to enhance the public awareness of the importance and role of free and fair competition in the market economy. However it has not been so successful for promoting free competition and fair trade order between large and small companies. Because the prohibition of abusive practices of a market dominant enterprise and unfair trade practices between large and small companies, and merger control by the KFTC have not been so active as the other, such as the prohibition of cartels and unfair practices in general. For enhancing the effectiveness of the Act as the fundamental law for market economy, it is very desirable for the KFTC to prohibit more actively the abusive conducts of a market dominant position and unfair trade practices between large and small enterprises and also to control anti-competitive merger in the future.
권오승 ( Seung Kwon Oh ) 서울대학교 법학연구소 2010 서울대학교 法學 Vol.51 No.4
Competition law is regarded as the Magna Carta of market economy. The competition law is generally enforced through administrative procedures by competition agency and through private litigation by competitors or consumers and criminal sanction. However in Korea, the enforcement of competition law has depended mainly on the public enforcement by Korea Fair Trade Commission (KFTC) since 1981. As a result, the private enforcement of competition law is not well developed as in other developed countries. More special feature is that KFTC has also engaged in the enforcement of consumer protection laws which are characterized as special private law. This enforcement system of competition and fair trade laws and consumer protection laws in Korea had some merits and weakness. In order to ensure free and fair competition in market and to protect consumer more efficiently, it is necessary to improve the current enforcement system. As for public enforcement, the KFTC should focus its activity on the prohibition of anti-competitive behaviors such as abuse control of market dominant position, merger control and cartel prohibition. And for the effective investigation of cartels, it is desirable for KFTC to cooperate with public prosecutor more closely. The administrative enforcement by KFTC on unfair trade practices and unfair contract terms should be substituted by private litigation. Since unfair trade practices and unfair contract terms can be more effectively prohibited by private litigation than by public enforcement, if some institutions to stimulate private litigation such as treble damages claim and class action will be introduced.
권오승 ( Oh Seung Kwon ) 아세아여성법학회 2009 아세아여성법학 Vol.12 No.-
The Law controlling on the unfair contractual terms and conditions was enacted in Korea since 1987. The law has much contributed to correct the un-fair practices of contractual terms and conditions in the real society. However the law contains still some problems have to be solved in the near future. First, the criterion and standard of judging the unfairness of contractual terms and conditions are not enough clear. It should be developed into more clear one. Second, the practice of controling on unfair contractual terms and conditions has been heavily relied upon the administrative control by Korea Fair Trade Commission. But it could affect the principle of private autonomy. Therefore it is strongly recommended to enhance the role of judicial review by the court in-stead of administrative control.