공정거래법에서 ‘거래상 지위’의 개념과 판단기준

Abstract

There have been a lot of researches regarding the concept and criteria on market dominant position. However, regarding the conducts of Abuse of Superior Bargaining Position(‘ASBP’), most researches concentrated on the prong of ‘abuse’ rather that of ‘superior bargainin position’(‘SBP’). This approach is not plausible because it gives excessive burden on the prong of ‘abuse’ to support liability as well as does not satisfy so-called screening function of liability requirements. Academia view that the qualification of ‘doer’ in unilateral conducts in competition laws can be categorized into three; market dominant position, SBP, and ordinary(or no) position. This categorization tend to simplify excessively the concept of ‘doer’ that is diverse per each characteristic type of diverse unfair trade practices. In addition, it may not incorporate the possibility of overlapping between SBP and ordinary position. Majority in academia explain that SBP differs from market dominant position in that the former tend to be characterized as subjective and relative concept while the latter be objective and absolute. Details are the role of the Guideline of the Korea Fair Trade Commission(‘KFTC’) and/or case laws by judiciary. Case laws emphasize the factors of constraint of trade relationship or difference of overall business ability to determine SBP. This criteria give flexibility but not clear enough to give justifiable predictability. Also only small differences in business size or ability may allow the requirement of SBP found easily. The KFTC Guideline amended in 2015 introduced a developed criteria that emphasize the factor of dependence in continuous trade relationship, however, it falls short of satisfaction. The author argues for the need for comprehensive and dynamic criteria. SBP tends to be different per each fact settings and in-depth observation and economic analysis is essential to incorporate the dynamics. One should be reminded that the determination of SBP is required to find whether each of trade parties has balanced bargaining power and ultimately the regulation is to prevent hold-up occurred. For the purpose, it is necessary to consider comprehensive factors to find market dominant position so as to reflect the market position of each business. Also, other relevant factors including outside option and countervailing power should be assessed. SBP in one time trade relationship may not be easy to admit and clearly abusive conducts may be considered as a direct evidence to support SBP.