티브로드 사건에 대한 고찰: 시장지배력 전이 이론을 중심으로
A Critical Review on Monopolistic Leveraging Theory in Tbroad v. Korean Fair Trade Commission Case
0
조회
0
다운로드
19
인용
0
참고문헌
키워드
초록
In 2007 the Seoul High Court delivered the 2007Nu10541 decision which recognized that Tbroad, plaintiff, abused its market dominant position in ‘TV program market’ to achieve an advantage in ‘TV program service market.’ In Tbroad, the Seoul High Court said that a theory of ‘monopolistic leveraging’can be applied to Tbroad’s behavior challenged by Fair Trade Commission(FTC) under the Korean Monopoly Regulation and Fair Trade Act (MRFTA). However, in 2008, the Supreme Court denied the applicability of a theory of monopolistic leveraging to Tbroad’s behavior in the question,and remanded the Seoul High Court’s decision. Of course it is true that the Supreme Court in the POSCO decision(2002Du8626) already recognized that a monopolistic leveraging theory can be accepted under the MRFTA when market dominant firm’s refusal to deal in upstream and/or downstream market matters. With regard to the Tbroad case, however, because ‘TV program service market’ is neither upstream nor downstream market, and Tbroad’s behavior challenged by FTC was not ‘refusal to deal,’ it is hardly legitimate to apply a monopolistic leveraging theory to Tbroad’s behavior under the MRFTA and the POSCO jurisprudence as well. For this reason, the Supreme Court’s decision to remand the Seoul High Court’s decision seems definitely reasonable and right.
Abstract
In 2007 the Seoul High Court delivered the 2007Nu10541 decision which recognized that Tbroad, plaintiff, abused its market dominant position in ‘TV program market’ to achieve an advantage in ‘TV program service market.’ In Tbroad, the Seoul High Court said that a theory of ‘monopolistic leveraging’can be applied to Tbroad’s behavior challenged by Fair Trade Commission(FTC) under the Korean Monopoly Regulation and Fair Trade Act (MRFTA). However, in 2008, the Supreme Court denied the applicability of a theory of monopolistic leveraging to Tbroad’s behavior in the question,and remanded the Seoul High Court’s decision. Of course it is true that the Supreme Court in the POSCO decision(2002Du8626) already recognized that a monopolistic leveraging theory can be accepted under the MRFTA when market dominant firm’s refusal to deal in upstream and/or downstream market matters. With regard to the Tbroad case, however, because ‘TV program service market’ is neither upstream nor downstream market, and Tbroad’s behavior challenged by FTC was not ‘refusal to deal,’ it is hardly legitimate to apply a monopolistic leveraging theory to Tbroad’s behavior under the MRFTA and the POSCO jurisprudence as well. For this reason, the Supreme Court’s decision to remand the Seoul High Court’s decision seems definitely reasonable and right.
참고문헌 (38)
- 신영수, "시장지배적 사업자에 의한 사업활동방해 행위의 성립요건", 경제법판례연구, 6 (2010)
- 최승재, "티브로드 사건과 양면시장이론의 적용가능성", 경쟁저널, (143) (2009)
- 황창식, "다면적 플랫폼 사업자에 대한 공정거래규제 －양면시장이론의 경쟁법적 적용 및 대법원의 티브로드 강서방송 판결 등의 사례분석을 중심으로－", 정보법학, 13(2), pp.97~148 (2009), 한국정보법학회
- 홍대식, "관련시장 획정에 있어서의 주요 잼점 검토 -행위 유형별 관련시장 획정의 필요성 및 기준을 중심으로-", 경쟁법연구, 23, pp.302~337 (2011), 한국경쟁법학회
- Areeda, Phillip, "Antitrust Law" (1996), Aspen Publishers
- Carrier, Michael A, "Of Trinko, Tea Leaves, and Intellectual Property", J. Corp. L, 31, pp.357~ (2005)
- Cavanah, Edward D, "Trinko: A Kinder, Gender Approach to Dominant Firms under the Antitrust Laws?", Maine Law Review, 59, pp.112~ (2007)
- Cucinotta, Antonio, "Post-Chicago Developments in Antitrust Law" (2002), Edward Elgar
- Elhauge, Einer, "Global Antitrust Law and Economics" (2007), Foundation Press
- Feldman, Robin Cooper, "Defensive Leveraging in Antitrust", Geo. L.J, 87, pp.2079~ (1999)
- A SSNIP Test for Two-Sided Markets: The Case of Media, "Filistrucchi, Lapo", NET Institute, ~, pp.NET Institute Working Paper No. 08-34 (2008)
- Identifying Two Sided Markets, "Filistrucchi, Lapo", TILEC Discussion, ~, pp.Paper No. 2012-008 (2012)
- Fisher, Franklin M, "Innovation and Monopoly Leveraging, In Dynamic Competition and Public Policy: Technology, Innovation, and Antitrust Issues" (2000), Cambridge University Press
- Fox, Eleanor M, "The Trouble with Trinko", Address to the 52nd Annual ABA Antitrust Section Spring Meeting, 4 (2004)
- Gellhorn, Ernest, "Antitrust Law and Economics" (2004)
- Gerber, David, "Law and Competition in Twentieth Century Europe: Protecting Prometheus" (1998), Clarendon Press
- Gormsen, Liza Lovdahl, "A Principled Approach to Abuse of Dominance in European Competition Law" (2010), Cambridge University Press
- Hesse, Renata B, "Two-Sided Platform Markets and the Application of the Traditional Antitrust Analytical Framework", Competition Policy International, 3(1) (2007)
- Hildebrand, Doris, "The Role of Economic Analysis in the EC Competition Rules" (2009), Kluwer Law International
- Hovenkamp, Herbert, "Federal Antitrust Policy" (2011), West
- "Tying and the Rule of Reason: Understanding Leverage, Foreclosure, and Price Discrimination" (2011)[URL]
- Jones, Alison, "EU Competition Law" (2011), Oxford University Press
- Markovits, R, "Tie-ins, Leverage, and American Antitrust Laws", Yale. L. J, 80(195) (1970)
- "Competition Economics and Antitrust in Europe" (2006)[URL]
- Ordover, Janusz A, "Comments on Evans & Schmalensee’s ‘The Industrial Organization of Markets with Two-Sided Platforms’", Competition Policy International, 3(1) (2007)
- "Leveraging of Reputation Through Umbrella Branding with and Without Market Power" (2011)[URL]
- Salop, Steven C, "Economic Analysis of Exclusionary Vertical Conduct: Where Chicago Has Overshot the Mark, In How Chicago School Overshot the Mark" (2008), Oxford University Press
- "Basic Pricing Principles in Two-Sided Markets: Some Simple Models, Basic Pricing Principles in Two-Sided Markets: Some Simple Models"[URL]
- Schmalensee, Richard, "Industrial Organization of Markets with Two-Sided Platforms", Competition Policy International, 3(1) (2007)
- Ullrich, Hanns, "The Evolution of European Competition Law" (2005), Edward Elgar
- Waverman, Leonard, "Two-Sided Telecom Markets and the Unintended Consequences of Business Strategy", Competition Policy International, 3(1) (2007)
- "A Two-Sided, Empirical Model of Television Advertising and Viewing Markets" (2007)[URL]
- Wickelgren, Abraham L, "Bundled Discounts, Leverage Theory, and Downstream Competition", American Law and Economics Review, 9(2) (2007)
- Whish, Richard, "Competition Law" (2009), Oxford University Press
- Antitrust and Competition in Two-Sided Markets, "xandrov, Alexei", SSRN, ~, pp.Simon School Working Paper No. FR 07-12 (2007)
- Bowman, W, "Tying Arrangements and the Leverage Problem", Yale. L. J, 67(19) (1957)
- "The Antitrust Economics of Two-Sided Markets"[URL]
- Economides, Nicholas, "Vertical Leverage and the Sacrifice Principle: Why the Supreme Court Trinko Wrong", NYU Annual Survey of American Law, 61(3) (2005)