廣告에 대한 規制措置 : 不公正法來行爲指定告示 第12號 = Control of Advertising in Korea

다국어 초록 (Multilingual Abstract)

This article examines the Korean system of advertising control and reviews the legal principles under the Designation and Anouncement of Unfair Trade practice and the Monopoly Regulation and Fair Trade Law through the comparative study on the FTCA of USA, the UWG of Germany and the above.
Central to the Korean system of advertising control is administrative regulation, primary reponsibility for which is vested in the Minister of the Economic Planning Board. The general EPB jurisdiction over deceptive advertising derives principally from section 39 of the MRFTL. The fair trade commision is eatablished in the FPB in order to deliberate on and decide important matters provided for in this law and matters in violation thereof prior to the decision and the disposition of such matters by the Minister, but the FTC decision is actually accepted by the Minister without objections, and while there are difficulties with regard to the construction of section 26, which looks as though it refers that the Minister should follow the FTC decision unless it reveals reasonable cause for objection. The FTC's performance and general institutional competence under the law has been severely questioned especially in respect of the independency.
Cases come to the attention of the FTC through the Minister's recognition of a violation and through reporting which anyone can make. The Minister may advice the violater to comply with a corrective measure before the case come to the commisssion for the deliberation and decision. If he agreed to the Advice, he is bound as if it had been issued after full administrative procedure. If the measure fails, the commission may proceed to the next stage in compliance procedure. If the respondent fails to comply with the final order, the FTC generally refers the case to the court for judicial proceedings.
The problems encountered in interpreting section 15 of the MRFTL and paragraph 12 of the DAUTP revolve around the question of what is considered "deceptive". As has been such cases in the FTC devisions, the Korean coutr has not hold on this matter yet. In the decisions th concept of "deceptive" has not been found clearly. This paper, accordingly, reviewed the construction of section 5 of the FTCA and that of section 3 of the UWG regarding "deceptive" and synthesized them. Although the laws of the three countries developed along different courses, their untimate form suggests a basic similarity of goals is USA, Germany and Korea-protection of the consumer and of the honest businessman.
Theoretically, the FTC has the ability to discover and the discretion of respond to public views in formulating advertising policy, although its actual performance and present competence in such matters is not reassuring. The commission is required to take into account the public interest in competition. Indeed, in cases involving deceptive advertising it is needed that such relief is appropriate.

목차 (Table of Contents)

• Ⅰ. 廣告規制
• 1. 意 義
• 2. 關係法令과 規制對象
• Ⅱ. 制度槪觀
• 1. 適用機關
• 2. 審判節次
• 3. 美國·獨逸·韓國의 制度比較
• Ⅲ. 法令適用
• 1. 違法行爲
• 2. 是正措置
• Summary