공정거래법상 시장지배적사업자 규제의 쟁점과 과제

The regulation of market-dominating enterprises is the core part of competitive laws in many jurisdictions. The prohibition of abuse of market-dominant positions under the Korea Monopoly Regulation Act, however, has not been so actively implemented and not made a significant contribution to improvement of major market structures since its enactment. This has been caused by legislative defects and related confusions as well as insufficient enforcement activities by law enforcement authorities. Since relatively recently, the Korea Fair Trade Commission has been trying to be active in implementing the prohibition of abuse of market-dominant positions and improving related legislations and administrative rules. More important is a recent Supreme Court decision which tried to clarify the legal requirements of abuse of market-dominant positions and methods of proving them. Those events prompted legal and policy debates among competition law academics and practitioners and created new issues for law enforcement authorities as well as academics. Among major legal issues and tasks regarding the prohibition of abuse of market-dominant positions under the Korea Monopoly Regulation Act are (1) lack of reasonableness in listing abusive acts on the Act, (2) legislative and theoretical confusions with respect to its relation with the prohibition of unfair trade practices under the Act, (3) practical difficulties in finding market-dominating positions, (4) competition policies on exploitative abuses, (5) legal and policy appropriateness of the recent Supreme Court decision, and (6) availability and necessity of the divestiture in abuse of market-dominant positions cases.