독점규제법상 착취남용에 대한 손해배상명령

Abstract

The prohibition of exploitative abuse under competition law does not aim atdirectly deciding competitive price by competition authorities. Though it cannot be denied that the regulation of monopolistic price setting means aninstrument for correcting unfair market performance, it works as an exceptionand within the limit of subsidiarity. Considering that the prohibition ofexploitative abuse of a marker dominant undertaking should protect free pricemechanism as ultima ratio, the Korea Fair Trade Commission(hereafter“KFTC”) should take more active stance and take more corrective remediesinto account. The corrective measure against an infringement such as unfair pricing or pricecollusion has as its goal not only to prevent the same or similar infringementsbut also to change illegal state for that of legitimacy. Order for injunction orrecurrence prevention by the KFTC, however, has been understood toeliminate ongoing illegal conducts only ex nunc. The core problem of thisapproach is that it does not suffice to fully exclude the illegal state or theresult of an infringement. Private damage actions can not be a sufficientsubstitute. Under the Monopoly Regulation and Fair Trade Act(hereafter “the Act”), theKFTC may order a price reduction as corrective measure in case ofexploitative abuse. Such an order can be interpreted to have a retroactiveeffect to a date of unfair price increase by the challenged undertaking andthen, the undertaking have to refund the difference between excessively highprice and reduced price. In a sense, the price reduction order imposes anobligation to pay back the price difference on the market dominantundertaking. If this kind of solution is not acceptable de lege lata, more wide interpretation of “other corrective measures” under the Act or a revision toexplicitly accomodate an order to compensate damages by the KFTC de legeferenda can be considered.