합리적 규제개혁을 위한 규제의 수직적 분류 제안 — 공정거래법과 소비자법을 중심으로 —

Abstract

There has been continuous dissatisfaction and criticism over unreasonable government regulations in spite of consistent efforts for regulatory reform. One of the main problems seems to lie in approaching regulatory reform to include all kinds of regulations based on identical criteria, stemming from an under-developed classification of regulations. This leads to an incorrect measure of outcomes and a dispersion of resources necessary for effective reform. The authors view that this problem can be overcome by devising a new classification or characterization methodology for government regulations. Most existing theories regarding classification of regulations are solely based on horizontal criteria. This method is flawed in that it does not consider the fundament quality of respective regulations. The authors argue that such a method needs to be supplemented by a method of vertical classification by which the inherent difference of each regulation’s character would be considered and reflected upon. Under vertical classification, a small number of regulations would be considered to be directly related to Constitutional values and be classified as 'norms'. People rarely expect such norms to be relaxed in the process of regulatory reform. In comparison, most regulations are considered to be practical tools to enforce Constitutional values and thus be classified as 'practical regulations' in a narrow sense. And then, some regulations, somewhere in the middle ground between the two categories of regulations mentioned above, look like practical regulations in form but possess intrinsic value to protect and realize Constitutional norms in a direct manner. These regulations would be considered 'normative regulations'. For example, the fundamental provisions of competition law that prohibit abuse of market dominance or cartels can be characterized as normative regulation since few people would expect such regulation to be relaxed. This three-step hierarchy system, in the order of norms, normative regulations and practical regulations, can be of reference in the process of regulatory reform. While those regulations that fall in the scope of norms or normative regulations should not be the subject of regulatory reform, practical regulations can be the focus of efforts for regulatory reform. This issue has significant implications particularly in the context of the "flat-rate reduction of regulation" initiative, a recent governmental initiative that requires all government bodies to reduce the numbers of its regulations by a certain set rate. In evaluating the performance of such efforts, only practical regulations should be considered, and not norms or normative regulations.