전기통신사업법상 금지행위 규제의 개선 ― 이용자이익 저해행위를 중심으로 ― (A Study on Regulating Prohibited Practices under the Korea elecommunications Business Act)

서지정보

· 발행기관 : 행정법이론실무학회
· 수록지 정보 : 행정법연구 / 20권 / 91 ~ 114페이지
· 저자명 : 이호영

초록

The Korea Telecommunications Business Act provides for prohibition of various business practices including violations of user's interest under the title, "Prohibited Practices". The enforcement decree of the Act also provides for the types and the criteria of the prohibited practices. The regulation of the prohibited practices under those legal instruments may be criticized from the viewpoints of clearness of the criteria and reasonableness of the underlying policies. First, the drafting method of relevant provisions on the Act and its enforcement decree creates large rooms for a variety of confusions in their actual implementation. Second, the conceptional confusion with respect to the user's interest in the relevant provisions misguides enforcement of the prohibition of violations of user's interest under the Act. The practices provided for as violations of user's interest in the relevant provisions should only include practices which directly harm interests of users, not those which restrain competitions in the relevant markets. Third, the enforcement records of the Act show that the telecommunication regulation authority has erroneously taken per se illegal approaches to various types of prohibited practices such as undue discriminations of users and telecommunication service tying practices. Those practices should be deemed illegal only when they are proved anti-competitive or unfairly harm user's interests. Enacting an enforcement guidelines can help to improve the enforcement practices. Fourth, the last type of the violations of user's interest under the enforcement decree of the Act should not be used as a ground for prohibiting business practices since no subordinate administrative rules which specify its types or criteria has been enacted as required by the decree. Fifth, remedies and collective measures for the prohibited practices should be proportionate to the seriousness and the effect of the practices in question and the requirements and controlling factors for each type of remedies and collective measures should be clearly articulated in relevant legislations or enforcement guidelines.

영어초록

The Korea Telecommunications Business Act provides for prohibition of various business practices including violations of user's interest under the title, "Prohibited Practices". The enforcement decree of the Act also provides for the types and the criteria of the prohibited practices. The regulation of the prohibited practices under those legal instruments may be criticized from the viewpoints of clearness of the criteria and reasonableness of the underlying policies. First, the drafting method of relevant provisions on the Act and its enforcement decree creates large rooms for a variety of confusions in their actual implementation. Second, the conceptional confusion with respect to the user's interest in the relevant provisions misguides enforcement of the prohibition of violations of user's interest under the Act. The practices provided for as violations of user's interest in the relevant provisions should only include practices which directly harm interests of users, not those which restrain competitions in the relevant markets. Third, the enforcement records of the Act show that the telecommunication regulation authority has erroneously taken per se illegal approaches to various types of prohibited practices such as undue discriminations of users and telecommunication service tying practices. Those practices should be deemed illegal only when they are proved anti-competitive or unfairly harm user's interests. Enacting an enforcement guidelines can help to improve the enforcement practices. Fourth, the last type of the violations of user's interest under the enforcement decree of the Act should not be used as a ground for prohibiting business practices since no subordinate administrative rules which specify its types or criteria has been enacted as required by the decree. Fifth, remedies and collective measures for the prohibited practices should be proportionate to the seriousness and the effect of the practices in question and the requirements and controlling factors for each type of remedies and collective measures should be clearly articulated in relevant legislations or enforcement guidelines.

참고자료

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