관련시장 획정에 있어서의 주요 잼점 검토 -행위 유형별 관련시장 획정의 필요성 및 기준을 중심으로-

Abstract

In an abuse of dominance case, market definition plays a critical role throughout the legal analysis of the Korea Fair Trade Commission (the “KFTC”): from the initial assessment whether the entity at issue is indeed dominant in the relevant market, to the assessment of the anticompetitive effect generated by the entity’s conduct, to the final assessment of the legality of the conduct. Likewise, in a cartel case, market definition should be required if the KFTC is to assess whether the parties to the agreement at issue constitute competitors and to what extent the agreement at issue restrains competition in the relevant market, irrespective of whether the parties’ conduct should be classified as hard-core cartel activity. Further, when viewed in the context of existing KFTC guidelines and Korean Supreme Court precedent, the market definition methodology is substantively the same whether the conduct at issue involves abuse of dominance, a business combination that restrains competition, or a cartel. That is to say,whereas the exact process by which a relevant market is defined could vary depending on the specific case, the overall methodology should remain the same. When defining the relevant market in a case, emphasis should be placed on the nature of the conduct at issue rather than the superficial classification of the conduct. Thus, a case requiring a prospective analysis of potential anticompetitive effects should be distinguished from a case requiring a retrospective analysis of past or existing anticompetitive effects, and vice versa. Meanwhile, whereas the degree of precision required in defining a relevant market varies depending on the specific case, a rigorous analysis of anticompetitive effects accompanied by a concrete definition of the relevant market should be employed where the conduct at issue requires a detailed analysis, e.g., where the presence or degree of anticompetitive effects depends on the market definition, where it is unclear whether the parties to an agreement constitute competitors, etc.