간격 좁히기: 국제 경쟁법으로의 수렴 또는 그로부터의 분산 -한국 경쟁법상 단독행위 규제를 중심으로-

Abstract

This paper aims to find out whether unilateral conduct regulations in Korean competition law, that is Monopoly Regulation and Fair Trade Act('the Act') are converging to or diverging from emerging global competition law. For this pupose, this paper is divided into three parts: (1) finding out the meaning of "anti-competitiveness" and "fair trade impediment" as legal basis of regualating unilateral conducts in Korean competition law, (2) case brief and analysis on Posco case, and (3) Review of formation factors affecting Posco and its assessment. The Act article 2 paragraph 8-2 has the definition of substantial restriction of competition. This term is consisted of two element: an element affecting the competitive process and an element affecting the outcome of competition. The Act article 23 has the requirement of fair trade impediment whose standard is broader than that of competition restriction. In Posco case which involved Posco's refusal to supply Hyundai Hysco of its hot coils when Hysco tried to enter the market of domestic cold-rolled steel plate, the Korea Fair Trade Commission('the KFTC') ordered corrective measures against Posco for its abuse of dominance. The KFTC's resolution was grounded on the findings of competitive disadvantage suffered by Hysco which was presumed de facto based on concrete disadvantage and Posco's intent to restrict competition. There is no specific recongnition about effects of competition restriction. At the appealing stage, the Seoul High Court confirmed the conclusion of the KFTC's resolution, but the logic of its judgment is different in that it requires to prove competitive disadvantage and effects of competition restriction even though the degree of proof is either low or presumed de facto. On the contrary, the Supreme Court rendered the judgment, remanding the case to the Seoul High Court after reversal. According to the majority opinion of the Supreme Court, intention or purpose of competition restriction should be proven as well as an act likely to effect competition restriction. The rationale of the KFTC's resolution is similar to the German concept of the impediment abuse. Compared with this, the Seoul High Court's conclusion seeks to find out the meaning of the exclusionary abuse, but fails since it adopts the presumption rules for the effects of competition restriction. Regarding the majority opinion in the Supreme Court decision, several commentators have assessed it as the effects-based approach. When adopting the effects-based approach, the unilateral conduct of enterprises should be examined based on whether it affects competition adversely. Foreclosure effect and consumer harm are expected to be placed as the focus of analysis. Even though it is still vague what is the stance of the Supreme Court on which the focus would be placed between process and outcome, the legal standards established by the Supreme Court is certain to converge toward emerging global competition law in the area of abuse of dominance law.