소상공인 생계형 적합업종 특별법에 관한 법적 연구

A Legal Study on the Special Act for the subsistence-type industries of a small merchant

In the face of polarization and social conflicts due to the abuse of economic power by major companies, the need for mutual growth between major companies and small and middle-sized enterprises (hereinafter, SMEs) had been continuously raised. Accordingly, the Lee Myung-bak administration pursued measures for achieving co-growth between major companies and SMEs by determining countermeasures for promoting mutual growth between major companies and SMEs, and then, launched the National Commission for Corporate Partnership on December 13, 2010. Since then, the biggest issue of the National Commission for Corporate Partnership has been the selection of business categories suitable for SMEs, of which development has led to the designation of business categories suitable for subsistence of micro-enterprises. In a crisis of survival of their business categories that reached the limit of growth, major companies are entering into business categories of which market can be easily occupied by taking advantage of capital advantage, rather than entering into a new industry that utilizes their proper specialty or oversea markets. As a result, micro-enterprises are on the brink of facing their breaking point where they can not retreat anymore. Considering the share of micro-enterprises in the national economy, the protection of micro-enterprises is very necessarily required, because the difficulty of micro-enterprises can lead to the crisis of the national economy beyond personal problems. In particular, since most people in the business categories suitable for subsistence of micro-enterprises maintain their livelihoods in company with their family members, their downfall can lead to many problems such as the increase in household debt problems, unemployment, and low-income groups. Various opinions have been raised over the implementation of the system of the business categories suitable for subsistence, including the pros and cons of said system as well as pointing out of its legal issues. The government has enacted a special law to protect micro-enterprises that are small and suffer from economic difficulties, but it is pointed out that such an artificial intervention in the market is not likely to enhance competitiveness, but rather have side effects. Furthermore, there is raised the question as to whether the designation of the business categories suitable for subsistence can actually protect micro-enterprises, and also, said designation itself has the possibility of violating the freedom of competition and operation of companies and the right of self-selection of consumers. It is possible that this not only hurts the economic order of the market but also reduces consumer satisfaction. In consequence, an artificial intervention in the market economy through legal restriction may not only disturb the order of the market economy but also threaten the market ecosystem to pose the risk of degrading the quality of the national economy.