시장지배적 지위남용에 대한 위법성 판단기준에 관한 연구 - 대법원판결을 중심으로 -

Abstract

The Korean Supreme Court rendered two decisions about antitrust law principles related to the abuse of market dominant position regulated under Article 3-2Monopoly Regulation and Fair Trade Act(MRFTA) in 2007 and 2008. The decisions clarify some unclear issues brought for a long time. This article focuses on two issues among them and comments critically on the decisions; (i) how different is the abuse of market dominant position from unfair trade acts? (ii) what is the criteria for the judgment of unlawfulness in the abuse of market dominant position? According the majority opinion of the Supreme Court in the POSCO case of the year 2007, the unfairness of refusal to deal by a company with market dominant position could be established only when such refusal causes a substantial anti-competitive impact on the market. The Supreme court clarified that the mere fact that the counter-party had suffered difficulties would not sufficient to establish the unfairness in the abuse of market dominant position like unfair trade acts under Article 23 of MRFTA. The T-broad case of the year 2008 concerned offering disadvantages to the counter-party, a home-shopping company. The Supreme Court followed the majority opinion in the POSCO case. In the United States, it is settled that the criteria for the judgment of unlawfulness in monopolization is anti-competitiveness. On the contrary, in EC, the abuse of market dominant position is divided into the exclusionary abuse and the exploitative abuse. While the exclusionary abuse requires the anti-competitiveness, the exploitative abuse does not require the anti-competitiveness. The core of the exploitative abuse is to earn monopoly profits at the expense of the customer. The abuse of market dominant position in Korea can be divided into two categories like that of the EC. I think that the offering disadvantages to the counter-party can be better analysed in the concept of the exploitative abuse rather than the exclusionary abuse. The attitude of the Supreme Court that employed the same standard in two cases above needs be reconsidered.