2013년 개정 일본 독점금지법에 대한 검토 (A Study on the 2013 Amendment to the Japanese Antimonopoly Act)

서지정보

· 발행기관 : 한국경쟁법학회
· 수록지 정보 : 경쟁법연구 / 30권 / 71 ~ 94페이지
· 저자명 : 하야시 슈야

초록

This article presents a study on the 2013 Amendment (hereafter: the NewAmendment), to the Japanese Antimonopoly Act, which abolished the currentHearing Procedure System for administrative appeals administered so far bythe Japan Fair Trade Commission (hereafter: JFTC).
The New Amendment was promulgated on 13 December 2013, and will be putin force in 2014 or 2015. The New Amendment can be summarized in threefollowing main points.
First, 1) the existing Hearing Procedure System for administrative appealsadministered by the JFTC will be abolished. Moreover, several provisions ofthe current Antimonopoly Act will also be abolished. They include: Article 85item (i) which provides for appellate jurisdiction of the Tokyo High Courtover the JFTC’s administrative orders; Article 80, which sets out thesubstantial evidence rule that dictates that fact findings made by the JFTC isbinding on the court if established by substantial evidence and; Article 81imposing limits on submitting new evidence .
Second, 2) according to Article 85, 86 and 87 of the New Amendment, theTokyo District Court will have exclusive jurisdiction over appeals againstcease and desist orders issued by the JFTC for violations of theAntimonopoly Act. Moreover, trials and judgments will be held by a panel ofthree or five judges. Such provisions are meant to ensure judicial expertise ofthe reviewing court.
Third, 3) changes are made to the hearing procedures which the JFTC conductsprior to issuing a cease and desist order. In order to enhance administrativeprocedures prior to the issuance of a final administrative order, the NewAmendment contains relevant provisions on presiding hearing officers, explanations of the content of an anticipated cease and desist order, and onthe inspection and transcription of evidence of facts found by the JFTC.
This article points out that the New Amendment raises a number of problems inlight of procedural fairness.

영어초록

This article presents a study on the 2013 Amendment (hereafter: the NewAmendment), to the Japanese Antimonopoly Act, which abolished the currentHearing Procedure System for administrative appeals administered so far bythe Japan Fair Trade Commission (hereafter: JFTC).
The New Amendment was promulgated on 13 December 2013, and will be putin force in 2014 or 2015. The New Amendment can be summarized in threefollowing main points.
First, 1) the existing Hearing Procedure System for administrative appealsadministered by the JFTC will be abolished. Moreover, several provisions ofthe current Antimonopoly Act will also be abolished. They include: Article 85item (i) which provides for appellate jurisdiction of the Tokyo High Courtover the JFTC’s administrative orders; Article 80, which sets out thesubstantial evidence rule that dictates that fact findings made by the JFTC isbinding on the court if established by substantial evidence and; Article 81imposing limits on submitting new evidence .
Second, 2) according to Article 85, 86 and 87 of the New Amendment, theTokyo District Court will have exclusive jurisdiction over appeals againstcease and desist orders issued by the JFTC for violations of theAntimonopoly Act. Moreover, trials and judgments will be held by a panel ofthree or five judges. Such provisions are meant to ensure judicial expertise ofthe reviewing court.
Third, 3) changes are made to the hearing procedures which the JFTC conductsprior to issuing a cease and desist order. In order to enhance administrativeprocedures prior to the issuance of a final administrative order, the NewAmendment contains relevant provisions on presiding hearing officers, explanations of the content of an anticipated cease and desist order, and onthe inspection and transcription of evidence of facts found by the JFTC.
This article points out that the New Amendment raises a number of problems inlight of procedural fairness.

참고자료

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