독점규제법 30년 회고: 시장지배적지위 남용행위 규제에 관한 공정거래위원회 심결례의 분석

Abstract

This analysis is aimed at reviewing briefly how KFTC has been operating the abuse control under Article 3-2 of the Competition Law since its adoption in 1981. Considering our current situation where concentrated market structures in major industries have not been sufficiently improved yet, the abuse control in the competition law will still have significant importance. Before we try to find an answer to the question which role the abuse control should play in order to obtain the goal 'the free and fair competition', a reflective study needs to be done firstly to see the real history of abuse control for last 30years. In terms of methodology, it would be better to analyze cases regarding the abuse control according to the effect of abuse as well as the type of conduct concerned rather than each section of Article 3-2. We can find out that KFTC had focused on the regulation of exploitative and hindering abuse done in relation to trading partners for most of years since its enactment. This could be understood as a necessary and reasonable policy in that concentrated market structures in Korea are supported by the enormous economic powers and strengthened by the systematized distribution networks. However KFTC seems to be moving toward the regulation of exclusionary abuse, since the Supreme Court has applied a more stricter standard for the reasonableness of abusive conducts. It raises doubts whether it is proper to switch to another direction in enforcing the abuse control at this moment. A new direction in competition policy should be backed up with the facts such as de-concentrated market structures or positive change in behavior of market-dominant undertakings generally, because it is likely to depress the enforcement of abuse control considerably. As of now, we cannot say we are confronting so much improved economic realities. Rather, it is time to reflect the nature of abuse control fundamentally, that is, achieving the competitive market structures gradually through the effective regulation