포스코 判決 이후 市場支配的 地位 濫用行爲 判例에서 ‘不當性’ 判斷의 傾向과 展望

Abstract

The POSCO Decision in 2007 introduced an effect-based approach to find unreasonableness about abuse of market dominance cases. Formation of detailed criteria in each type of violations of abuse of dominance, however, was to be made visible in following cases. Analysis of nine Supreme Court decisions about abuse of dominance, after the POSCO Decision until present, represents that most decisions support the spirit and fundamental standards of the POSCO Decision. It means that the POSCO Decision is not one with limited application to refusal to deal cases only, as predicted by some commentators. Many voices categorize abuse of dominance cases into two types; exclusionary and exploitative as seen in theories of EU competition laws. Detailed analysis of the six Supreme Court decisions for exclusionary abuse shows that most of them go along with the standard prepared by the POSCO Decision with only minor variations. Decisions for the latter type, however compared with the decisions for the former type, reveal more fluctuations in terms of seriousness and unreasonableness criteria. Those criteria were not included in the POSCO Decision that dealt with exclusionary abuse and should be created new; as a result, unreasonableness criteria in exploitative abuse may be found heterogeneous from that of the POSCO Decision. The author believes that this is not right and should be improved in future decisions. In any event, major criticism about the POSCO Decision was that it made regulations over dominant firms too difficult due to excessive requirement of intent factor that is not required in US　and EU. It proved not to be true because past decisions did not raise the intent requriement as hard-to-prove issues in any case. The Fair Trade Commission revised the Criteria of Abuse of Markt Dominance in 2012. The revision reflected the unreasonable criteria in the POSCO Decision in the codes. It accepted the POSCO standard especially with regard to the part of restriction of market competition. It means that the KFTC officially made it clear that she will respect the POSCO Decision in competition law enforcement in the future. Confirming that the POSCO Decision is supported by the Supreme Court and the KFTC, it is necessary to develop effect based approach that emphasizes market performance in all aspects of competition law enforcement. It shall be a way to make the enforcement contribute in developing Korean economy.