FTA에서의 경쟁과 관련된 법적 과제- 협정문 비교를 통한 시사점을 중심으로 - (Legal Issues in Competition Chapter of the FTA)

서지정보

· 발행기관 : 충북대학교 법학연구소
· 수록지 정보 : 법학연구 / 25권 / 1호 / 157 ~ 192페이지
· 저자명 : 이동원

초록

Several recommendations are shown through this paper focusing on theappraisal of the Free Trade Agreements (FTAs) of some countries includingUSA and Canada. The review of KOR-US FTA can be classified with fourparts as follows; ⅰ) competition law and anticompetitive business conduct,ⅱ) designated monopoly and state enterprises which comprise the core ofthe FTA, ⅲ) differences in pricing and cross-border consumer protection,and ⅳ) procedural regulations including transparency, coordination,consultations, and dispute settlement, and this paper examines every partby comparing with the other FTAs which made by US, Canada, Singapore,Australia, Peru, Chile, EU, EFTA, ASEAN, India and Korea.
Firstly, we can recognize the objectives of competition law as theeconomic efficiency and the consumer welfare in the provisions of the FTA,understand the rules and regulations of the anticompetitive business conductas general provisions, and admit the enhancement and development of theprocedural rights of the persons subject to the imposition of a sanction orremedy for violation of competition laws with the opportunity to seek reviewof the sanction or remedy in a court or independent of a tribunal.
Secondly, there are no different opinions in the definitions of thedesignated monopoly and state enterprises, though there are somedifferences in the expression method, and there are also no differencesof obligations of those entities which contain the government monopoly and the privately-owned monopoly as follows; (a) acts in a manner thatis not inconsistent with the Party's obligations wherever such a monopolyexercises any regulatory, administrative, or other governmental authoritythat the Party has delegated to it in connection with the monopoly goodor service, (b) acts solely in accordance with commercial considerationsin its purchase or sale of the monopoly good or service in the relevantmarket, (c) provides non-discriminatory treatment to coveredinvestments, and (d) does not use its monopoly position to engageincluding through its dealings with its parent, subsidiaries or otherenterprises with common ownership. The FTAs that was done with Koreahad no reflection or similarity in contents or formality of the globalstandards before the KOR-US FTA.
Thirdly, charging the different prices of the designated monopoly andthe state enterprises are allowed, where such differences are based onnormal commercial considerations such as taking account of supply anddemand conditions, and it is important to recognize the needs ofcooperation in information exchange, notification etc. on matters relatedto cross-border consumer protection.
Fourthly, there are provisions in all of the FTAs concerning thetransparency, cooperation, consultations, and the dispute settlement,especially in the FTAs which has been done by US, even though thereare some differences in expression mode. Basically, it is indispensible to compare the FTAs of other principalcountries with ours to be a better one, and this paper shows what shouldwe do and take actions to enhance and develop the provisions of our FTAin the future.

영어초록

Several recommendations are shown through this paper focusing on theappraisal of the Free Trade Agreements (FTAs) of some countries includingUSA and Canada. The review of KOR-US FTA can be classified with fourparts as follows; ⅰ) competition law and anticompetitive business conduct,ⅱ) designated monopoly and state enterprises which comprise the core ofthe FTA, ⅲ) differences in pricing and cross-border consumer protection,and ⅳ) procedural regulations including transparency, coordination,consultations, and dispute settlement, and this paper examines every partby comparing with the other FTAs which made by US, Canada, Singapore,Australia, Peru, Chile, EU, EFTA, ASEAN, India and Korea.
Firstly, we can recognize the objectives of competition law as theeconomic efficiency and the consumer welfare in the provisions of the FTA,understand the rules and regulations of the anticompetitive business conductas general provisions, and admit the enhancement and development of theprocedural rights of the persons subject to the imposition of a sanction orremedy for violation of competition laws with the opportunity to seek reviewof the sanction or remedy in a court or independent of a tribunal.
Secondly, there are no different opinions in the definitions of thedesignated monopoly and state enterprises, though there are somedifferences in the expression method, and there are also no differencesof obligations of those entities which contain the government monopoly and the privately-owned monopoly as follows; (a) acts in a manner thatis not inconsistent with the Party's obligations wherever such a monopolyexercises any regulatory, administrative, or other governmental authoritythat the Party has delegated to it in connection with the monopoly goodor service, (b) acts solely in accordance with commercial considerationsin its purchase or sale of the monopoly good or service in the relevantmarket, (c) provides non-discriminatory treatment to coveredinvestments, and (d) does not use its monopoly position to engageincluding through its dealings with its parent, subsidiaries or otherenterprises with common ownership. The FTAs that was done with Koreahad no reflection or similarity in contents or formality of the globalstandards before the KOR-US FTA.
Thirdly, charging the different prices of the designated monopoly andthe state enterprises are allowed, where such differences are based onnormal commercial considerations such as taking account of supply anddemand conditions, and it is important to recognize the needs ofcooperation in information exchange, notification etc. on matters relatedto cross-border consumer protection.
Fourthly, there are provisions in all of the FTAs concerning thetransparency, cooperation, consultations, and the dispute settlement,especially in the FTAs which has been done by US, even though thereare some differences in expression mode. Basically, it is indispensible to compare the FTAs of other principalcountries with ours to be a better one, and this paper shows what shouldwe do and take actions to enhance and develop the provisions of our FTAin the future.

참고자료

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