현행 공정거래법상의 재판매가격유지행위금지* － Dr. Miles 원칙과 Leegin Creative Leather Products, Inc. v. PSKS, Inc. 사건을 통하여 살펴본 현행 재판매가격유지행위금지제도에 대한 재고찰 －

Abstract

Although many Korean companies implement price controls over their distributors such as providing price guidelines, the Korean Fair Trade Commission (the “KFTC”) has regarded such price control as per se illegal whenever such price control falls under the definition of “(minimum) resale price maintenance” (the “RPM”) under the Korean Monopoly Regulation and Fair Trade Law(the “KFTL”), without considering various relevant factors such as formulation of market for concerned goods, an industrial system where the goods are traded, or economic efficiencies or disadvantages of concerned activities. This policy position of the KFTC is not much different from the one of the U.S. Supreme Court since it adopted so-called “Dr. Miles Rule” about 100 years ago. The U.S. Supreme Court, however, has recently changed its 100 year-old position in Leegin Creative Leather Products, Inc. v. PSKS, Inc. and ruled on June 28, 2007 that only the fact that manufacturers and distributors agreed on minimum RPM should not be deemed as illegal per se but illegality of such activities should be determined based on “Rule of Reason” considering other relevant factors such as impacts on competition or other vertical restraints (“Leegin Decision”). As the Leegin Decision reasonably opines, the RPM should not be treated as illegal per se only because it reduces intrabrand competition but it should be approved as a fair corporate activity or fair management of distributors if its economic benefits of promoting interbrand competition are greater than its costs from the reduction of intrabrand competition. Therefore, the current RPM system should be reevaluated based on the rule of reason taking into consideration relative benefits and costs of RPM from the market perspective. Against this backdrop, I am of the view that the existing provisions of the KFTL should be amended to such extent and, the KFTL should provide more detailed categories of activities limiting the competition or detailed RPM guidelines for determining illegality. In this regard, this article aims to introduce the recent Leegin case, to analyze legal issues and problems of the current RPM prohibition system under the KFTL, and to discuss possible constructive solutions while reviewing the Korean court cases and the KFTC’s cases and the US case laws.