공정거래법상 부당한 공동행위에서 부당성 판단

Abstract

When asked whether agreements with competitive restrictions under the Korean competition law are always prohibited, they may not be prohibited unless unfairness is recognized, and the meaning and criteria for judgment of unfairness were presented based on precedents, academics, and foreign legislation. Since the independent requirement of unfairness is recognized by literary interpretation and precedents, the effect of promoting competition should be considered at the stage of competition restriction, and the existence of unfairness should be proved by competition authorities. The precedent presents an unfairness standard of overall economic efficiency from the perspective of balanced national economic development, which was embodied and categorized as an industrial policy standard or a value-reflecting standard based on the collusion approval criteria and application exception criteria. The above two specific criteria play a role in making the judgment of unfairness clearer, and to determine if the criteria are met, the analysis is required to a wider associated markets rather than just related markets. It is necessary to examine whether it is an act aimed at the values or basic rights that the Constitution intends to guarantee. Nevertheless unfairness can only be denied exceptionally, so carefulness is needed. In addition, we attempted an analysis based on the above review, focusing on the recent FTC trial decision issue. It is necessary to see how industrial policy standards at the national economy level and value-reflecting standards at the constitutional value realization level are embodied in future events in the interpretation and application of unfairness requirements.