시장지배적 사업자의 리베이트 제공행위에 관한 미국의 판례에 대한 분석

Abstract

Leading cases of US courts regarding rebates show us three different perspectives on rebate by market-dominant undertakings. The first one is the perspectives of ‘unfair method of competition’ in Brown Shoe case of the Supreme Court. The second one is the perspective of ‘level of price’ in Barry Wright, Concord Boat, Virgin Atlantic Airways and Casacade of some Circuit Courts of Appeals, which is following the so-called ‘Predatory Pricing Standard’ originated from Brook Group case of Supreme Court. The last one is the perspective of ‘method of foreclosing competitors’ in SmithKline,LePage’s and Ortho of some other Circuit Courts of Appeals, which can be called as the ‘Foreclosure Standard’. Although there is a certain limitation in applying the standards used in cases of US courts to cases in the context of Korean Competition Law directly, we would be able to draw very insightful implications for reviewing ‘unreasonableness’, especially when judging whether competition in the relevant market has been hindered under the Article 3-2 in the Korean Competition Law. First of all, we should be cautious not to apply Predatory Pricing Standard as a maximum level of criterion (not as a minimum level) for regulating rebates, in that it is probable to leave a vacuum in regulating market-dominant undertakings’ abusive conduct. On the other hand, Foreclosure Standard, especially a standard in LePage’s case seems to be quite insightful when we conduct a legal review under the abuse control in Article 3-2 of Korean Competition Law, that is firstly assuming foreclosure of competitor on the basis of typical dangerousness of the conduct in question, and secondly letting this assumption be rebutted through concrete proofs. Of course, it is undeniable that the quite formal standard in LePage’s case which assumes foreclosure of competitor from the mere fact that a market-dominant undertaking supplies products it’s competitor doesn’t, has a possibility to impede price competition through rebates. Therefore it seems to be appropriate to adopt SmithKline case which requires to prove at least indirectly that it’s competitor has very little choice to meet market-dominant undertaking’s rebate.