독점규제법상 공동행위에 대한 위법성 판단 방법의 문제

In traditional antitrust principles, most of collaborations affecting price construction have been concluded ‘per se illegal’. Per se illegal categorization means that some category of activity can be condemned without determining whether it is unreasonable and has any competitive justifications. Thus, per se status has also been understood to permit condemnation of restraints (i) without need to demonstrate market power or anticompetitive effects or (ii) without need to consider a defendant's justifications. These latter formulations warrant particular attention. The first relieves plaintiff of the burden of proving actual or probable anticompetitive effects. In contrast, the second deprives defendant of the ability to overcome plaintiff's prima facie showing of competitive harm. Nowadays the necessity for collaborating between competitors, however, has increased with view to sharing financial risk, appropriating fund of research and investment in new technology. Consequently, a wide variety of organizational forms have been made in the world. However, there are frequently ancillary restraints associated with joint activity, which restrict individual firm conduct outside of joint ventures. Where it is only ancillary restraints for the procompetitive benefits, this restriction may be acknowledged reasonable. KFTC also adopted the ancillary restraint theory into the Guideline for Collaboration between Competitors in 2002. Under this ancillary restraint theory, even if classical restraints in which per se rule was applied are estimated to be illegal, but it is not affirmative. If defendant proves procompetitive justifications, the restraint shall be evaluated in detail. Therefore, in first step to investigate the naked restraints, courts and the agency (KFTC) should evaluate the procompetitive justifications without requiring market power analysis in order to decide illegally of the ancillary restraint efficiently. Following the process of the collaboration guideline, analysis of ancillary restraints must be performed so quickly that do not place the burden to prove anticompetitive effect on private plaintiffs.