독점규제법의 현대화

Abstract

Since 1981, the enforcement of Monopoly Regulation and Fair Trade Act(hereinafter " the MRFTA" or "the Act") has contributed greatly to lessening anti-competitive or unfair trade practices. However the Act still can not play its role as a Magna Carta of market economy in Korea. Because the Act could not succeed in converting a monopolistic or oligopolistic market structure into a competitive one, and did not effectively prohibit anti-competitive practices and reduce the concentration of market power. In order to enhance the effectiveness of the Act, the author has endeavored to analyse comprehensively its problems and to find practical solutions for them. In this paper, the entire endeavor is called as the "modernization of the MRFTA." It would not be surprising that this endeavor would invite in depth discussions and debates among the experts and interested parties in the competition law and policy circles. The purpose of this paper is to stimulate such debates and to encourage the initiation of the modernization process thereby particularly in terms of legislative amendment. Below is the summary of the author’s perspectives on the problems and solutions for the current MRFTA on substantive, procedural, and institutional aspects as well as statutory organization. For improving the whole structure of the Act, it is desirable to repeal Chapter 5(Unfair Trade Practices) of the Act, which deals with the unfair trade practices. At the same time, Chapter 6(Trade Associations) and Chapter 8(International Contracts) could also be deleted. This restructuring could contribute to make the Act function as a fundamental law of economic order in Korea. Furthermore, in order to enhance the effectiveness of control on concentration of economic power, it is strongly recommended that the sections with regard to the control on concentrations of economic power under Chapter 3(Mergers/Concentration of Economic Power) need to be relocated to the new separate chapter. And the sections prohibiting undue support practices between the undertakings or special related persons under Chapter 5 could also be moved to the same new chapter. This incorporation of both ex ante and ex post control under a single chapter could contribute to enhance the effectiveness of control on concentration of economic power. Substantive aspects of the modernization encompass a wide variety of subject matters under the MRFTA, including the purpose clause and the definitions clause. With regard to section 1(Purpose), it is recommended that unnecessary parts of the section should be deleted from the statute and that the term “consumer protection” in the section be changed to “consumer welfare.” Through this amendment, the purpose of the Act could be more clearly identified that the Act aims to increase consumer welfare by facilitating free and fair competition. Also, Paragraph 6(Resale Price Maintenance) under Section 2(Definitions) could be entirely deleted from the section. The standards of extraterritorial application of the Act could also be supplemented with more specific terms. In order to enhance the efficiency of the policy for transforming the anti-competitive market structures by the Korea Fair Trade Commission(hereinafter “the KFTC”), it is necessary to introduced a new system of regular monitoring and evaluating the implement of the policy into Section 3(Transforming Monopolistic/Oligopolistic Market Structure) of the Act. Furthermore, Section 3.2, a substantive provision on the abuse of dominant position, should introduce a general definitional term for what “abuse of market dominance” means. Sub-categories of such abusive conduct, e.g. exclusionary and exploitative abuses could be made explicit on the section with most common type of conducts for each category of abuse enumerated as illustration. Subparagraph 1, Section 4(Presumption of Dominant Position) of the Act could be left intact. However, subparagraph 2 of the same section needs to be changed to presume the existence of dominant position when a sum of two or less undertaking(s)' market shares is 75% or more(except for any undertaking with less than 25% market share). Also, Section 5(Remedies for Abuse of Dominance) could be revised to explicitly mention structural remedies such as divestiture, lessening of entry barriers, etc. Paragraph 4(Presumption of Substantial Lessening of Competition), Section 7 of the Act could be amended to allow presumption of "substantial lessening of competition" whenever the total market shares of the merging/merged parties satisfy the market share requirement for the presumption of market dominant position. Also, Paragraph 1, Section 16(Remedies for Anti-competitive Mergers) could add an explicit legal basis for taking remedial measures structural in nature such as divestiture, sale of assets, and measures concerning intellectual property. Another point on Chapter 3 worth amending is to control "circular share-holdings" among three or more affiliates as a means of "general concentration" of economic power by a big business group. To effectively restrain such circular share-holdings, the current version of Section 9.2(Circular Share-Holdings) needs to be revised. Prohibition of circular share-holdings under Section 9.2 should be revised not only prospectively applicable to newly formed circular share-holdings but also to already-existing one. In order to prohibit various types of collusive behaviors among undertakings effectively, extending general definition of "unreasonable collusive behaviors" in Paragraph 1, Section 19(Unreasonable Collusive Behaviors) is strongly recommended. A new, more expansive definition should be broad enough to cover both explicit and tacit agreement, (conscious) parallelism, and concerted practices. The scope of Chapter 5 should be narrowed only to cover conducts harming competitive processes or having a nationwide economic or societal implications(e.g. abuse of superior bargaining power). Another types of conducts excluded from Chapter 5 could be regulated by other special laws on civil matters. The net effect of all these amendments would be to significantly relieve the present heavy burden of the KFTC which has to deal with a large number of "unfair trade practices". Ensuring independence as well as enhancing the expertise of the KFTC also require revisions of the relevant provisions under the MRFTA. Non standing commissioners need to be replaced with standing commissioners. The number of commissioners should also be reduced to 5 to 7, with their term of office increased to 5 to 6 years. The staggered term system should be introduced for the purpose of enhancing the independence of the Commission. With regard to expertise, finding a way to improve staff members' expertise(not only commissioners') in terms of economic and legal analysis will be necessary. Pursuing both effectiveness and fairness in public enforcement at the same time is not an easy task as it seems. Better ways to ensure transparency and fairness during the investigation and internal review processes of the KFTC should be designed and implemented in the first place. On the other hand, the KFTC should be empowered to conduct compulsory investigations when they are necessary (e.g. investigating hardcore cartels). Guaranteing the procedural due process of respondents would require a reform of the current case management system by make it more adversarial in nature. Time limit to appeal from the KFTC's final decision needs to be extended to 90 days as well. These kinds of reform would provide rationales for designating the Seoul High Court as having exclusive jurisdiction for appeals from the final decision of the KFTC which could legitimately be considered a quasi-judicial body. On the one hand, criminal enforcement of the Act should be limited to certain categories of serious violations of the law such as unreasonable collusive behaviors, abuses of dominant positions, concentration of economic power, and failures to comply with the KFTC's cease and desist orders. On the other side, it would be important to extend the imposition of criminal penalties to natural persons(CEOs, executive officers, directors, etc.) who are either directly or indirectly involved in an illegal conduct. Meanwhile, the KFTC currently retains the exclusive authority to file a criminal complaint for a violation of the Act. Such broad authority should be curtailed so that its applicability is limited to the cases requiring policy decision-making by the KFTC. Finally, effective enforcement of the Act can be also achieved by active private litigation. Key facilitators for private litigation such as treble damages, class actions, and injunctive reliefs should therefore be introduced into the provisions of the Act.