미국 셔먼법상 독점화 행위인 단독의 거래거절의 위법성 판단기준 -의도기준의 유용성을 중심으로-
The Illegality Standard of Unilateral Refusals to Deal as Monopolizing Conducts under the Sherman Act - Focusing on the Usefulness of the Intent Standard -
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The antitrust laws are concerned with two anticompetitive conducts,collusion and exclusion. However, it has been difficult to decide how to determine whether exclusionary conducts are anticompetitive. Under Article 2of the Sherman Act of the U.S., unilateral refusals to deal are illegal only when they constitute monopolization or attempted monopolization. That is,the plaintiff must show that the defendant is a monopolist and that his refusal to deal is anticompetitive exclusionary conduct, as shown in unilateral-refusal-to-deal cases that quoted the Colgate dictum. Nevertheless,courts and scholars have long proposed colorful tests, because the Sherman Act’s requirements on monopolization and an attempt to monopolize give only vague answers for the standard of illegality on a unilateral refusal to deal. One of the tests is the intent test. In adopting the Colgate dictum to judge the illegality of a unilateral refusal to deal, courts have long showed interest in how to interpret a monopolist’s intent or purpose. However,influenced by the Chicago School and the post-Chicago School, which stress a strict economic approach to antitrust analysis, courts have generally dismissed intent as having minimal value in determining antitrust liability, in particular, in monopolization cases. Although the Supreme Court revived the role of the intent test in Aspen, at least in unilateral-refusal-to-deal cases, it narrowly circumscribed Aspen’s application in Trinko several years later. By examining the usefulness of the intent test by analyzing Aspen’s intent inquiry with a monopolist’s profit sacrifice being merely one indicator of a monopolist’s intent with Trinko’s rule, which treated a monopolist’s profit sacrifice simply as an element of exclusionary conducts, and by trying to find that the Chicago School and post-Chicago School’s economic theories are indeterminate, this article argues that the intent test can provide further guidance and serve as a proxy for anticompetitive effect, and that the Korean Supreme Court Decision 2002Du8626 used the intent test appropriately.
Abstract
The antitrust laws are concerned with two anticompetitive conducts,collusion and exclusion. However, it has been difficult to decide how to determine whether exclusionary conducts are anticompetitive. Under Article 2of the Sherman Act of the U.S., unilateral refusals to deal are illegal only when they constitute monopolization or attempted monopolization. That is,the plaintiff must show that the defendant is a monopolist and that his refusal to deal is anticompetitive exclusionary conduct, as shown in unilateral-refusal-to-deal cases that quoted the Colgate dictum. Nevertheless,courts and scholars have long proposed colorful tests, because the Sherman Act’s requirements on monopolization and an attempt to monopolize give only vague answers for the standard of illegality on a unilateral refusal to deal. One of the tests is the intent test. In adopting the Colgate dictum to judge the illegality of a unilateral refusal to deal, courts have long showed interest in how to interpret a monopolist’s intent or purpose. However,influenced by the Chicago School and the post-Chicago School, which stress a strict economic approach to antitrust analysis, courts have generally dismissed intent as having minimal value in determining antitrust liability, in particular, in monopolization cases. Although the Supreme Court revived the role of the intent test in Aspen, at least in unilateral-refusal-to-deal cases, it narrowly circumscribed Aspen’s application in Trinko several years later. By examining the usefulness of the intent test by analyzing Aspen’s intent inquiry with a monopolist’s profit sacrifice being merely one indicator of a monopolist’s intent with Trinko’s rule, which treated a monopolist’s profit sacrifice simply as an element of exclusionary conducts, and by trying to find that the Chicago School and post-Chicago School’s economic theories are indeterminate, this article argues that the intent test can provide further guidance and serve as a proxy for anticompetitive effect, and that the Korean Supreme Court Decision 2002Du8626 used the intent test appropriately.
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