공정거래법상 소위 ‘포괄적 단일 공동행위’ 법리에 관한 연구-EU 경쟁법상 ‘계속적 단일 위반행위’ 법리와의비교를 중심으로

Abstract

This article reviews the formation and development of the so-called “single and comprehensive collusion doctrine,” and draws implications from its comparison with the “single and continuous infringement doctrine” under the EU Competition Law. Notwithstanding its lack of an explicit statutory basis, the single and comprehensive collusion doctrine was formulated and elaborated based on the case law of the Korea Fair Trade Commission (hereinafter “KFTC”), the nation’s competition authority, in its enforcement of competition law, as well as court precedents reviewing KFTC decisions. Under this doctrine, competition authority may deem a series of multiple agreements over the long term in pursuit of a single, common goal to constitute a unitary collusion. The point at which the final agreement ended determines the termination date of infringement, which in turn serves as the base date of determining whether the statute of limitations has run or calculating surcharges. The doctrine has practically the same purpose and legal effect as the “single and continuous infringement doctrine” under the EU Competition Law. However, there is an important distinction in their respective requirements. Most of Korean judicial precedents dealing with the single and comprehensive collusion doctrine have been conducive to the purpose and significance of the doctrine. However, a few decisions are apparently unsupported by legal doctrine or inconsistent with the earlier precedents. With a view to ensuring consistency and foreseeability in its enforcement going forward, this author argues for an explicit statutory basis for the doctrine, as well as provisions on the requirements for its establishment, criteria for their application, and its legal effect. This author also argues that it is reasonable to incorporate the knowledge or reasonable foreseeability requirement for finding a single and comprehensive collusion, as derived from its EU Competition Law counterpart.