필수설비이론에 대한 서론적 고찰 - 미국법상 거래거절행위의 규제를 중심으로 -

Conventionally, the Essential Facility Doctrine is adopted as one standard which regulates the refusal to deal by a lower court in U.S. In early stages, the refusal to deal is illegality recognized only when a doer did with the purpose to create or maintain a monopoly. However, it is difficult to explaining a subjective intention of an offender. And it is saying that "the monopoly intention itself is illegal" makes a mistake in capitalism physiology. So the court has come to look for the intention of an offender from the bad influence to the market of an act objectively.　In such a process, the court has resulted that the entrepreneur who already had has monopoly power in the market might gain the predominance position in other markets with used his monopoly power are illegal. In this case, only when the dangerous probability of acquiring monopoly power in other markets exists objective, it can be said that it carries out illegal. The Essential Facility Doctrine can be said to be that came out by the extension of the position which it is going to objective grasp for an offender's illegality. If only the exclusion fact of the rival by the refusal to deal and the necessity of essential facility are proved, without the purpose to create or maintain a monopoly, according to the Essential Facility Doctrine, it will mean that this refusal had carried out illegal. However, You have to take care for compelling such firms to share the source of their advantage(essential facility) is in some tension with the underlying purpose of antitrust law, since it may lessen the incentive for the monopolist, the rival, or both to invest in those economically beneficial facilities. Therefore, when appling this Essential Facility Doctrine we must be restrictively applied in an exceptional case strictly. Then, the Essential Facility Doctrine may develop in the future, and carried out minute more. This Essential Facility Doctrine came out of the efforts which are going to solve an offender's subjective intention according to the objective fact, so the rationality carries out this doctrine. Moreover, when suspicion of the basis on the policy which admits the monopoly itself is carried out, for example, the use of the intellectual property rights exceeding scope of protection interferes with the technical innovation or entrepreneur who came to govern an essential facility as a result of government regulation etc, it is thought that the Essential Facility Doctrine must be applied exceptionally.