공정거래법상 단독의 위반행위 규제의 체계(Ⅱ) - 불공정거래행위로서의 거래거절행위의 위법성, 그 본질과 판단기준(판례를 중심으로)

Abstract

Regarding the case of refusal to renew a sale contract by Hyundai Oil Bank in 2002, the Constitutional Court found it a violation of Korean competition law, however, the Supreme Court denied unfairness of the conduct. These contradictory judgments raised confusion in academia about the reach of unfairness in unilateral refusal to deal cases as a kind of unfair trade practices. This article found that current criteria about unfairness of the refusal, widely accepted in academia and expressly adopted by the Supreme Court, stem from old academic discussions in Japan that again have roots in early lower court cases 50 years ago. After analysis of most Supreme Court judgments about unilateral refusal to deal, the author found that the real criteria the Supreme Court applied to find liability were quite narrower than the criteria she expressly adopted; liability was found only when the conduct was done by a business entity with substantial market position that may be short of market dominance, though. When the Court was able to infer certain unfair purpose from conducts, unfairness was readily found. In many cases in which the Court was not able to infer such purposes, however, key issue was whether the business of the transaction party was made very difficult. At the same time, when there exist plausible reasons to engage in the questioned refusal the fairness inferred was readily overturned. In conclusion, the author finds that real criteria the Supreme Court applied to cases are better suited to realities of business transaction in contemporary.