독점규제법 위반행위에 있어서 주관적 요건의 검토
A Study on the Subjective Requirement of Competition Law Violations
0
조회
0
다운로드
13
인용
0
참고문헌
키워드
초록
The Korean Supreme Court says that the subjective requirements, asanti-competitive intent or purpose, must be needed at the judgment of theabuse of market dominant power, as well as the competition restraints effects. Regulations with regard to the abuse of market dominant power in article 102in TFEU understand the concept of abuse is an objective, and subjectiverequirements, such as anti-competitive intention are not consideredindependent. The objective characteristics of the behavior in the relevantmarket can be crucial in determining whether the abuse. In Section 2 of the Sherman Act as to prohibition of monopolization orattempted monopolization, the subjective requirements of the behavior wouldbe at least accepted as an essential consideration. However, this approachmust be understood in terms of the different legal system, regulating themonopoly itself. The issues could be raised in determining the illegality of cartel, too. In thisregard, article 101 in TFEU mentions explicitly the purpose of competitionrestraints as the requirements of the regulations of cartel. But the purpose inthis article proved by nature, in a case where the effect of the competitionrestriction exists, and could not be understood as a subjective requirement. Competition Law violations in the point of view of the subjectiverequirements of the criminal law could be a problem.
Abstract
The Korean Supreme Court says that the subjective requirements, asanti-competitive intent or purpose, must be needed at the judgment of theabuse of market dominant power, as well as the competition restraints effects. Regulations with regard to the abuse of market dominant power in article 102in TFEU understand the concept of abuse is an objective, and subjectiverequirements, such as anti-competitive intention are not consideredindependent. The objective characteristics of the behavior in the relevantmarket can be crucial in determining whether the abuse. In Section 2 of the Sherman Act as to prohibition of monopolization orattempted monopolization, the subjective requirements of the behavior wouldbe at least accepted as an essential consideration. However, this approachmust be understood in terms of the different legal system, regulating themonopoly itself. The issues could be raised in determining the illegality of cartel, too. In thisregard, article 101 in TFEU mentions explicitly the purpose of competitionrestraints as the requirements of the regulations of cartel. But the purpose inthis article proved by nature, in a case where the effect of the competitionrestriction exists, and could not be understood as a subjective requirement. Competition Law violations in the point of view of the subjectiverequirements of the criminal law could be a problem.
참고문헌 (33)
- 공정거래위원회, "공정거래위원회 30년사", ~ (2011)
- 권오승, "경제법(제7판)" (2009), 법문사
- 신동권, "독점규제법" (2011), 박영사
- 신현윤, "경제법" (2012), 법문사
- 양명조, "경제법강의" (2011), 신조사
- 유진희, "경제법(제9판)" (2012), 세창출판사
- 이봉의, "시장지배적 지위남용에 관한 leading case의 검토", 제2회 SNU 경쟁포럼 (2010)
- 이재상, "형법총론" (2003), 박영사
- 이호영, "공정거래법상 시장지배적사업자 규제의 재점과 과제", 저스티스, (104), pp.75~99 (2008), 한국법학원
- 이호영, "독점규제법" (2012), 홍문사
- 정영진, "대법원의 시장경제에 대한 철학적 고뇌", 법률신문, ~ (2007)
- 정호열, "경제법 제4판" (2012), 박영사
- 조성국, "독점규제법 집행론" (2010), 경인문화사
- 金井貴嗣, "獨占禁止法" (2010), 弘文堂
- Areeda, P., "Antitrust Analysis" (1988), Little, Brown & Company
- Czapracka, K., "Intellectual Property and the Limits of Antitrust" (2009), Edward Elgar Publishing Ltd
- Emmerich, V., "Fälle zum Wettbewerbsrecht 4" (2000), C. H. Beck
- Ezrachi, A., "EU Competition Law" (2010), Oxford Univ. Press
- Furse, M., "Competition Law of the EC and UK" (2008), Oxford Univ. Press
- Gerard, D., "Effects-based enforcement of Article 101 TFEU: the object paradox", Kluwer Competition Law Blog, ~ (2012)
- Goyder, J., "EC Competition Law" (2009), Oxford univ. Press
- Hovenkamp, H., "Federal Antitrust Policy", pp.2005, Thomson
- Immenga, U., "GWB Kommentar" (2001), C. H. Beck
- Jones, A., "EC Competition Law" (2008), Oxford Univ. Press
- Kneepkens, M., "Resale Price Maintenance: Economics Call for a More Balanced Approach", European Competition Law Review, 28(12) (2007)
- Kovacic, W. E., "Designing Antitrust Remedies for Dominant Firm Misconduct", Connecticut Law Review, 31 (1999)
- Kovacic, W. E., "Importance of the Effects‐Based Approach and the Rule of Reason in Competition Law", ~ (2012)
- Peeperkorn, L., "Implementing an effects-based approach to Article 82", Competition Policy Newsletter, ~ (2009)
- Pierce Jr. R. J., "Regulated Industries" (1999), West Group
- Rittner, F., "Europäisches und deutsches Wirtschaftsrecht" (2008), C. F. Müller
- Sullivan, E. T., "Understanding Antitrust and Its Economic Implications" (2003), LexisNexis
- Whish, R., "Competition Law" (2009), Oxford Univ. Press
- Wiedemann, G., "Handbuch des Kartellrechts" (1999), Verlag C. H. Beck