공정거래법상 필수설비법리의 현황과 과제

Abstract

Recent Developments and Issues of Essential Facilities Doctrine under the Korea Antimonopoly Act With the introduction of 'Abuse of Essential Factors' in its Enforcement Decree in 2001, the Korea Antimonopoly Act(hereafter "the Act") was oriented toward the 'Essential Facilities Doctrine'(hereafter "EFD") which finds its sprout in precedents of U.S. antitrust law and had much influence on some decisions of European Commission. Before such revision, however, it should have been reviewed, whether the Act had revealed any deficits in preventing an incumbent monopolist misuse its own resources in order to foreclose or discourage new entrants into downstream markets. Under the Act, 'refusal to deal' has been regarded as abusive or unfair so broadly and flexibly that one cant not find any drawbacks regulating abuses based on certain facilities in existing competition law regime. Therefore the meaningful implication of the codification of EFD is, on one hand, that the Doctrine could suggest certain stricter criteria exceptionally for imposing a duty to promote competition on a facility-owned monopolist. On the other hand, the Essential Factors clauses is able to facilitate competition in regulated markets characterized by high fix costs and low marginal costs. Especially network industries, such as telecommunication, electricity, gas and harbour etc. In case these industries are progressively privatized and deregulated, the EFD would contribute to introduction and promotion of effective competition by means of separation of network and service markets and guaranteeing non-discriminatory access to that network.