시장지배적 지위 남용 사건에서 시장지배력 전이 이론 원용의 문제점

Abstract

The theory of monopoly leveraging suggests that a company's dominant position in one market can extend to another. According to this theory, a company with market power can engage in abusive practices that restrict competition in other markets as well. However, a narrow interpretation of this theory diminishes its distinct significance from the standards of unfairness set forth in the POSCO decision. In the European Union (EU), the ‘special responsibility’ of dominant market players is recognized. Even if abusive practices occur in a market where dominant status is not established and result in competitive harm, EU law has acknowledged violations of Article 102 of the TFEU in cases where there is a close relationship between the markets under specific circumstances. Attempts to apply EU law's transference of dominance in cases like the T-Broad Gangseo Broadcasting case or the SKT Melon DRM case have been made. Meanwhile, in the United States, the theory of monopoly leveraging has been used to somewhat relax the criteria for assessing anticompetitive behavior under Section 2 of the Sherman Act, which regulates monopolization or attempted monopolization. In South Korea, recent cases like the Naver Shopping incident have seen attempts to apply this theory in a similar vein, moderating the standards of unfairness established by the POSCO decision. However, considering that the Supreme Court of South Korea requires a causal link between the abusive conduct of a dominant market player and the occurrence of anticompetitive effects, and the difficulty in finding special reasons to moderate the standards set by the POSCO decision when the market of abuse and the market where competitive harm occurs are different, it seems inappropriate to apply the monoply leveraging theory recognized in the EU or the once-accepted (but now largely discarded) U.S. principles in South Korean cases of abuse of dominant market position. In conclusion, regardless of how the theory of market dominance transference is understood, it appears to be a theory of limited practical use in cases of abuse of dominant market position under South Korean Fair Trade Law.