거래상 지위와 남용행위의 판단기준

Abstract

Regarding abusing behavior in trade position, it has been discussed mainly focusing on meaning and judging standard in trade position. But, it doesn't have huge meaning to focus on discussing trade position both practically and theoretically. That is because it is very difficult to investigate trade position itself independently and it is the matter of its degree not trade position about actual trade relation. Though there are some cases that trade position is clear when judging trade position, there may be some vague cases. In case the degree of disadvantage against trading partners is severe when trade position is vague, that is because there exists gray zone whose abusing behavior is vague though trading position is clear. In this case, it is important to find how trading position or abusing behavior should be judged. This report focuses on how to interpret that in case trade position or abusing behavior is in vague grey zone. In order to solve such problem, it is more important to define abusing behavior clearly with top priority than investigating trade position vividly. This report proves that the factors that judge trade position exist not only level of degree and but sustainable normal transaction. So, in case of vague trade position or abusing behavior, it explains such behavior is abusing behavior if it is judged as abusing behavior that interrupts the free and independent judgment of trading part from the specific fact of behavior. And it emphasizes that the behavior itself that interrupts the free and independent judgment of the party would be disadvantage as the disadvantage does not mean the economic disadvantage simply regarding revealing the abusing behavior in detail. Such restriction cannot avoid the criticism as the one that protects the weak if the disadvantage is judged by focusing on economic balance between trading parties, however, it proves that the positional abusing in trade can happen between large companies and small-and-medium companies too. It is because that the positional abusing is the restriction that protects the free trade of market members that protects the fair and free competition not the one that protects the economic weak.