단독행위 관련 최근 판결에 대한 분석과 전망

Abstract

The Supreme Court decision of 2002du8626, rendered on January 22, 2007,referred to as the POSCO case is known to have provided a standard todistinguish between conduct relating to abuse of market dominance underArticle 3(2) of the Monopoly Regulation and Fair Trade Act (the “MRFTA”or the “Act”) and conduct relating to unfair trade practices under Article 23 ofthe Act, which had been a long-time problem in the area of competition law. The ruling is also known to be a milestone that provides the basis forjudging the unfairness of a refusal to deal as a type of abuse of marketdominance. The POSCO case ruled that in order for a refusal to deal to constitute an unfairconduct as an act of market dominance, it must satisfy both the subjectiveelement of intention or purpose to maintain/strengthen its monopoly and theobjective element of conduct likely to have anticompetitive effect. In thisregard, the decision ruled that a refusal to deal as an act of abuse of marketdominance is different from a refusal to deal as an unfair trade practice. However, the academia presented a strong view that objective element alone issufficient to serve as a standard for judging the unfairness of abuse ofmarket dominance and that subjective element is unnecessary. In addition, theacademia also voiced that the POSCO case should be interpreted as beinglimited to refusal to deal as an act of abuse of market dominance. With regard to the standard for judging conduct involving the interference withbusiness practices, the Supreme Court states that the same standard ofunfairness in the POSCO case applies, while the subjective element is defacto presumed for exclusionary conduct due to the nature of the conduct. With respect to conduct that harms consumer interests, the Supreme Courtstates that the legislative intent lies not only in the promotion of competition in a monopolistic or oligopolistic market but also in the protection ofconsumer interests. In effect, the Supreme Court places the focus on decidingwhether there is harm to consumer interests. The Supreme Court’s position may have been prompted to maintain its standardfor deciding the illegality in the POSCO case, while offering to seek for amore detailed logic. In other words, with regard to exclusionary conduct, theSupreme Court maintained its unfairness standard in the POSCO casethrough effective elimination of the subjective element by focusing on thenature of the conduct at issue, while accommodating the criticisms of theacademics regarding the unnecessariness of the subjective element. Furthermore, the Supreme Court states that the unfairness standard in thePOSCO case is insufficient to decide on the conduct that harms consumerinterests, and instead decides on the matter by examining whether theconduct harms consumer interests by pointing out that protection of consumerinterests, in addition to promotion of competition in a monopolistic oroligopolistic market, was part of the legislative intent for abuse of marketdominance. Based on the Supreme Court’s foregoing interpretation of the law, it is likelythat the POSCO’s standard of unfairness will be invariably applied in thefuture in deciding on the unfairness of the conduct involving interference withbusiness practices as a type of exclusionary conduct as an act of abuse ofmarket dominance. However, the subjective element of the POSCO case maybe loosely applied in deciding on the unfairness for conduct involvingrestriction on market entry and exclusion of competition. Meanwhile thestandard may be substantially modified in deciding on the unfairness forexploitative abusive conduct including price abuses, output control andconduct that harms consumer interests since the fact-finding and the decisionregarding the consumer interests protection aspect seems to be of importance.