최저재판매가격유지행위의 위법성 평가기준

Abstract

In 2007, the United States Supreme Court in Leegin Creative Leather Products,Inc. v. PSKS, Inc., 551 U.S. 877, 127 S.Ct. 2705 held that application of per serule is unwarranted as to vertical agreements to fix minimum resale prices,overruling almost century-long Dr. Miles Medical Co. v. John D. Park & SonsCo., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502; that administrative convenienceof per se rule cannot justify its application to resale price maintenance (RPM)agreements; and that alleged higher prices caused by minimum RPM did notjustify application of per se rule. The Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”)defines that “RPM means an act by which an enterpriser compels, in tradingthe goods or services, a counterpart enterpriser or an enterpriser by nextstage of transaction to sell them only at the price fixed in advance, ortransacts under any agreement or binding conditions thereon for suchpurpose” in Article 2 No. 6 and provides that “no enterpriser shall engage ina resale price maintenance, except the case where there exist justifiablereasons in terms of the maximum resale price maintenance preventing thetransactions of products or services in excess of specified prices” in Article29(1). The exception for justifiable maximum RPM was introduced to the FairTrade Act by the Amendment Act No. 6371, Jan. 16, 2001, which wasmotivated by the U.S. Supreme Court’s decision in State Oil Co. v. Khan, 522U.S. 3 of 1997. And the Korea Fair Trade Commission and Korean courtshave treated harshly the minimum RPM, allowing no justification subject tothe Fair Trade Act until the Korean Supreme Court in Hanmi PharmaceuticalCo. case Number 2009-Doo-9543 in November 25, 2010 held that “evenminimum RPMs could have some justifications such as promotion ofinterbrand competition and expansion of consumer welfare under some exceptional circumstance.” Many commentators have regarded the HanmiPharmaceutical case deeply influenced from the U.S. Supreme Court’s Leegincase decision. And the Korean Supreme Court has kept friendly position tothe minimum RPMs in subsequent cases including Korea Callerway Golf Ltd. Co. case Number 2010-Doo-9976 in March 10, 2011. The purpose of this article is to discuss the illegality test that can be applied tothe minimum RPMs under the Fair Trade Act and to find and suggest anadequate framework for weighing and balancing relevant factors. For thatends, the meaning and influences of the U.S. Leegin case should be observed. I think that minimum RPMs should be condemned illegal as coercingindependent enterpriser into reluctant pricing and giving rise toanti-competitive effect. In other words, the illegality of minimum RPMscomes from both factors, firstly coercion of a transacting party into pricingwhich deprives the party’s freedom of action, and secondly the resultinganti-competitive effect. And provided the difficulties courts should bear inapplying full-rule-of-reason approach, we should choose quick-look,abbreviated or structured rule-of-reason approach as a framework. I criticize Hanmi Pharmaceutical Co. case and subsequent cases in the light ofthe contents and frame of the Article 29(1) of the Fair Trade Act. I believethat courts in civil law countries such as South Korea can not make lawthemselves but interpret the applicable law instead. Consequently, I suggestamendment of Article 29(1) to include provision allowing exceptional plea forminimum RPMs.