해운법상 외항화물운송사업자의 시장지배적지위남용행위의 규제

Abstract

Since it is widely recognized that some favors given to the shipping industries are improper or needless, changing the policies that affect various levels of cooperation among liners is unavoidable. An example of these policies would be the Shipping Conference. Even though a Shipping Conference can be prohibited because it is a violation of the Sherman Act, in the United States, it is permitted for the ship owners to join a Shipping Conference under the regulation of the Federal Maritime Committee (hereafter, the FMC). Additionally, the European Union, EU, recently introduced some competitive policies to control the shipping industry’s policies like the Shipping Conference. Although the Korean government maintains it’s stance on giving some privileges to the shipping industries through antitrust exemptions from the Korean Marine Transportation Act (hereafter, the KMTA), it is doubtful that this will continue due to the external effects on the U.S. and the EU. Since any violations of antitrustlaws in an extra-territory can be regulated by the nations where its effects take place, transactions in Korean markets can be punished in the U.S. or the EU as long as it affects the overseas markets' competition laws. Article 82 of the Treaty Establishing the European Community prohibits any abuse of a dominant position within EU. To this regard, European authorities recently abolished a block exemption of the EU Antitrust Law which was applied to the shipping industries. However, due to the lack of provisions in the KMTA and/or the Korean Monopoly Regulation and Fair Trade Act (hereafter, the KMRFTA) governing any abuse of the shipowners' dominant position in the market, it is unclear whether abuse of a dominant position will be properly regulated by the above Acts in the Korean shipping market. In the writer's view, even if there are no provisions governing abuse of a shipowners' dominant position in the KMTA or the KMRFTA, abuse of a dominant position can be regulated first by the KMTA, and the KMRFTA can also be applied additionally. Finally, although the shipowners' abuse of a dominant position can be regulated by the KMTA and/or the KMRFTA, it is problematic, in practice because both the Ministry of Oceans and Fisheries and the Fair Trade Commission are not specialized in shipping sectors. This phenomenon may eventually result in the vacuum of supervision of the abuse of dominant powers in the shipping sectors. Therefore, it is recommended that an independent authority, which has power to control any abuse of dominant positions in the maritime fields and is analogous to the FMC of the U.S. should be established in Korea.