The nation''s penalty surcharges system was first introduced during the enactment of the Act on Monopoly Regulation and Fair Trade(Act No. 4198, Dec. 31, 1980, hereinafter referred to as the ''Fair Trade Act'' or ''Act'').
Under the Fair Trade Act, penalty surcharges are understood to be monetary sanctions to recover economic profits (unfair profits) earned from violations and to ensure the effectiveness of the law''s purpose by curbing future violators or other operators from committing violations.
Therefore, it is necessary to recover the penalty surcharges if there is an unfair gain in the first place, and to impose a fine sufficient to achieve the deterrent effect of preventing the recurrence of violators and preventing other operators from violating the Act.
Considering this point, the penalty surcharges calculation system needs to be designed with precision such as the relevant sales figures, the standard rate of imposition, the weighting and reduction factors, the scale of unfair profits, and the principle of proportionality and equality.
In designing the penalty surcharges calculation system, the first is to impose excessive penalty surcharges far exceeding the unjustifiable gains obtained for violations so as not to emphasize only the sanction nature, and secondly, to prevent the failure to recover them even if there are unjust gains, and thirdly, to impose no Penalty surcharges that far exceed the ability of the violator to pay for violations, to recover unjust gains, and to ensure sufficient effect in the future.
This article aims to improve the current penalty surcharges calculation system in a more reasonable and reasonable manner. The current measures for improvement in the calculation of penalty surcharges are set out in Chapter 4. Here we summarize the main points.
Although major countries have separate standards for calculating fines and penalties, Korea has the same standard for calculating fines and basic calculation.
In the end, such a structure is subject to penalty surcharges only within the maximum value of the basic criteria for calculation (related sales × 10%(3%) and is difficult to properly reflect the weighting and reduction factors, the size of the entity''s business size and economic power, and in large cases, small businesses may face a survival threat.
In order to resolve these problems even a little bit within the current penalty surcharges calculation system, it is necessary to mitigate the reduction standard[(N-2)/N] for the maid service operators in bidding negotiations, and set a separate basis rate for levying on small businesses or small businesses. In addition, if the individual circumstances of the transgressor (the degree of illegality of the offence) differ by the transferee operator (participate in only some agreements, short term of the breach period, etc.), the rate of the imposition needs to be applied differently (or as a deduction factor in the secondary adjustment).
In the first adjustment, the weighting ratio for the number of past violations should be raised to 100% from the current maximum 80%, and the period for calculating the number of violations should be extended to 10 years to maximize the effect of sanctions and deterrence.
The secondary adjustment requires a weighted reason for the increase (or increases at the level of Determination of Imposed Penalty Surcharges) if the negative gain is greater than the secondary adjusted basis. This presupposes the calculation (or estimation) of unjustifiable gains, requiring the development of sufficiently quantified or estimated economic analysis methods and manpower reinforcement. Even so, it is necessary to make an attempt to calculate (or estimate) unfair profits while handling cases to calculate proper fines.
At the level of Determination of Imposed Penalty Surcharges, it is necessary to ensure that the secondary adjusted calculation basis is substantially greater than or significantly greater than 50% or more than 50% in cases of non-vesting size.
Finally, it is necessary to specify the concept of related sales directly in the law and to allow the member to be imposed penalty surcharges if the entity''s group has violated the business group but the actual unjustifiable gain is on the member (component operator). In addition, the methods for calculating related sales and contract amounts need to be specified in the Presidential Decree to enhance transparency and efficient execution. In addition, in major countries, the concept of a business operator is regarded as an economic monolithic entity, and the limit on the imposition of penalty surcharges is set, and sales and unfair profits of a certain group of companies are included in the related sales. Korea also needs to overhaul its implementation plan and the system for calculating penalty surcharges.