시장지배적지위 남용행위에 대한 집행체제를 둘러싼 문제점 및 최근 국내외 집행동향에 관한 연구

Abstract

In many jurisdictions around the world, the abuse of market dominance is not as actively regulated by competition authorities as it should be considering its significance. This is because, first of all, it is difficult to establish the illegality of an act of a dominant firm. Also, behaviors of a dominant firm take so many variations that it is not easy to categorize abusive activities of dominant position in written provisions and then come up with judging standards for each type of such behaviors. Against this backdrop, this study starts by looking at Korea’s legal and regulatory systems regarding abuse of dominant market position. First of all, Korea’s Monopoly Regulation and Fair Trade Act (hereinafter “MRFTA”) has considerable duplication between the provisions of the abuse of dominant market position and those of unfair trade practices. Actually, such duplicate provisions are rarely found together in other nations’ competition laws except for Japanese competition law. This study examines various problems arising from Korea's current regime. Centering around the screening guidelines and decisions of the Korea Fair Trade Commission (hereinafter “KFTC”) and court rulings, this study deliberates on this issue step by step in relevant stages. Regarding the proof of the unfairness of the abuse of dominance, the Supreme Court of Korea has put in place rigorous requirements since its POSCO ruling in 2007, asking for subjective requirement-intent to maintain or strengthen monopoly/oligopoly - as well as objective requirement - a potential anti-competitive effect. However, very few advanced jurisdictions demand the subjective requirement. From the theoretical point of view, the subjective requirement itself can hardly be a target of substantiation.Therefore, the Supreme Court has recently shown some signs of alleviating the subjective requirement in its Nonghyup ruling, and other court decisions are treading a similar path. Building on this trend, courts, the KFTC and the academic circle need to have a multi-faceted discussion and come up with improvement the measures on proving the unfairness of abuse of dominance and searching for a desirable regulatory regime. Hearings and seminars would be helpful to formulate a reasonable consensus and to build a common understanding on this issue.This study also touches on the issue of the Intel case study. Few competition law cases have received as much attention as the General Court's Intel judgement of 12 June 2014, in which it upheld the Commission's decision that Intel had breached Article 102 and the imposed fine of €1.06 billion. With regard to the case, this study introduces extensive opinions from various fields and looks at this issue in a constructive manner. In conclusion, this study spells out problems that the current legal and regulatory systems are faced with in the area of the abuse of dominant market position in competition law, and presents several suggestions to address such problems. Also this study deals with the Posco case and the Intel case from various angles. Hopefully, this study can help contribute to the work of legislative improvement of the MRFTA and other related KFTC guidelines in the short run. Furthermore, in the long run, this study can also be useful in helping the enactment or amendment of Korean antitrust law and civil law in general.