독점규제법상 필수요소조항의 적용가능성 (대상판결: 대법원 2005. 8. 19 선고 2003두5709 판결)

Even though almost 5 years have passed since its introduction, there has been insufficient accumulation of scholarly or practical analyses regarding the provisions on "essential elements." The case at issue (Supreme Court case no. 2003du5709, decision rendered August 19, 2005) is the first case the Fair Trade Commission of Korea ("KFTC") used the term of "essential facilities" since the concept of essential elements or facilities was introduced under the Monopoly Regulation and Fair Trade Act (the "MRFTA") and indeed the first case decided by the Supreme Court applied the concept of essential facilities. In the instant case, the KFTC viewed the credit card joint use network constructed by specialized credit financial companies for their credit card business as having the characteristics of an essential facility, but no further analysis was developed. In contrast, the Seoul Appellate Court held that, if Shinhan Bank does not use the network, it could be placed in a perpetual inferior position as a competitor, and therefore, the network was essential to Shinhan Bank's credit card business and that it is not possible for Shinhan Bank to construct the network on its own, and therefore, the network has the characteristics of an essential facility. Such holding by the Seoul Appellate Court can be viewed as an attempt to actively apply the provisions of the MRFTA regarding essential position. Regrettably, however, the Supreme Court merely acknowledged that the network has the characteristics of an essential facility without any particular criticism of the Seoul Appellate Court's holding. However, the holding of the Supreme Court that mandatory access to essential facilities promote fair competition and reduce redundant investment can be viewed as significant in that, apart from the rational soundness of such point, the Supreme Court has at least recognized the concept of essential facilities.