사업자단체의 구성사업자 사업활동제한에 대한 부당성 판단기준에 관한 연구 - 달빛어린이병원 사건 (대법원 2021.9.15. 선고 2018두41822 판결)을 중심으로 -

초록

Business associations in Korea have played an important role, including a medium of communication between the government and the industry. Thus their decisions tend to reflect the government's intention and have a power to bind their members. If business associations make a decision to restraint competition among members, it would have an anti-competitive effect on the market. This is why there is a special provision, article 26 of the Monopoly Regulation and Fair Trade Act(hereafter “MRFTA”), for business association. And unfair restraint of business activities is prohibited under article 26(1)(iii). But given that business associations by nature can restrict business activities of their members to some extent, it is important to determine whether challenged conduct is “unfair” restraint or not. It is also important whether the conduct to protest government policies is exempt from the antitrust law. In 2021, There were two Supreme Court’s decisions on the medical strikes which the korean medical associations decided to engaged in. Both cases dealt with application of the article 26(1)(iii), but the courts came to the opposite conclusion. To explore the proper application of the article 26(1)(iii), this paper analyzes above two cases as well as another medical strike in 2020 and the discussion in the Japan and U.S. In conclusion, the regulation under the MRFTA should reflect our legal system or real economy. Therefore it is not necessary to require strict coercion or proof of the intention in the case related to violation of article 26(1)(iii). Also, it is desirable that the meaning of "unfair" in article 26(1)(iii) is viewed as “unfairness” in article 23.

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