해운업에 있어 부당공동행위에 관한 연구

Abstract

Article 29 of Korean Marine Transportation Act(hereunder, ‘KMTA’) stipulates that ocean freighters can make agreement onto the condition of the carriage, for example rate and spaces. However agreement between ocean freighters can infringe Article 19(1) of Korean Monopoly Regulation and Fair Trade Act(hereunder, ‘KMRFTA’) which forbids cartel between business entities. In the meantime, there is a question whether ocean freighters’ agreement on the rate etc. which is allowed by Article 29 of KMTA can be exempted from application of KMRFTA because Article 58 of KMRFTA allows business entities’ legitimate acts which are based on other legislations. In conclusion, it is quite certain that agreement between ocean freighters based on Article 29 of KMTA is a legitimate act which is within the scope of Article 58 of KMRFTA. According to Article 29(3) of KMTA, it is required that ocean freighters’ agreement should not substantially restrict competition in the relevant market by unjustifiable raise of rate or other means. In this regards, the above said Article functions as a limit for ocean freighters’ agreement. As mentioned before, Article 29(3) of KMTA explicitly requires substantial restrict of competition and injustice as conditions for the act which is not permitted under that clause. In writer’s view, substantial restrict of competition means any acts of forming or fortifying dominant position in the relevant markets, and the most important factor for the assessment of dominance is a certain ocean freighter’s market share rate. Therefore when a certain ocean freighter’s dominant power forms or fortifies in the market by the agreement with other ocean freighters, it is likewise that the agreement is an unlawful act that substantially restricts competition in the market. In this context, an ocean freighter’s market share rate would be the most significant factor for the assessment of market dominance. Meanwhile, when it is proved that an act highly restricts competition one can also presume the act is unlawful. However, when we retrospect the main purpose of Article 1 of KMTA,, an agreement which contributes to the improvement of consumers’ benefit and development of national economy can be justifiable only when the merits of those acts exceed the de-merits.