독점규제 및 공정거래에 관한 법률상의 과점규제에 대한 비판적 고찰 - 시장지배적 사업자 정의 관련 대법원 2005. 12. 9. 선고, 2003두 6283판결을 중심으로 -

The Supreme Court of Korea held in Supreme Court 2003 Du 6283 Decision (“BCCard Case”) that more than two companies which were not legaly one person should be considered separate enterprisers in determing whether those enterprisers violated the prohibition of abuse of the market dominant position. The Court held that it was irrelevant for those enterprisers to act unitarily from the economic view point. As such, the ruling of the BC Card Case would cause dificulty in Korean society’s dealing with the oligopoly problem because it would limit the application of the prohibition of abuse of market dominant position unreasonably by restricting the scope of market dominant enterpriser under Article 2.7 of Monopoly Regulation and Fair Trade Act (“MRFTA”). In similar factual situations, however, European Court of Justice held that where legaly several undertakings colectively acted as an unitary entity against the competitors and/or consumers from the economic standpoint, those undertakings are treated as one undertaking in determing whether they had collective market dominant position and that they violated the Article 82 of the EC Treaty. When it comes to anti-cartel clause, MRFTA recently adopted the U. S. plus theory, on the other hand. This paper critically analyzes the ruling of the BC Card Case by compared with the positions of the U.S. and EU, and then argues that the prohibition of abuse of the market dominant position clause should broadly apply to the oligopoly problem, and that the economical unit should be considered as one enterprise.