병행적 배타조건부거래의 위법성 판단

Exclusive dealing by an enterprise establishes unfair conditions of not transacting with its competitors or competitors’ affiliates, thereby unreasonably restricting their business practices. This practice can inhibit competition in the market. On the other hand, there is a possibility that exclusive dealing can make an enterprise maintain its stable transaction relationship with its trading party through systemization of distribution. In addition, exclusive dealing by downstream enterprises or new entrants can enhance effective competition in the market. However, if there is a parallel practice, cumulative market foreclosure effects from this can create possible anti-competitive harms on the market. This article intends to scrutinize whether or not a plaintiff needs to prove parallel collaboration between enterprises in order to decide illegality, based on cumulative market foreclosure effects, of their parallel exclusive dealing, or alternatively to examine each enterprise’s individual contribution to exclusive dealing practice. If the competition authority adopts the current US approach of the criterion, proving existence of collaboration through concerted practice for condemning exclusive dealing of cumulative market foreclosure effects, it should have the burden of proving enterprises’ tacit and explicit agreements. On the contrary, if the competition authority does not take the approach of burden of requirements of proving collaboration in order to condemn this practice, it should examine cumulative foreclosure rate by these enterprises and each enterprise’s contribution to market foreclosure. Where the com- petition authority decides the enterprises violated the relevant provisions based on a mere fact of parallel practice, it can make an error of admitting an “inclusive cause-and-effect” rather than a significant individual “causal relationship” based on practice-and-effect. In addition, when analyzing illegality of parallel exclusive dealing, it is desirable for the competition authority to accept the qualitative substantiality test which is often used by competition regimes around the world. If the enforcement agency sets a rule on prohibiting exclusive dealing without closely examining its overall effects on the market, the agency can mistakenly apply per se rule although rule of reason is applicable on this exclusive dealing. Therefore, the competition authority should analyze not only market shares of enterprises but also foreclosure effects by exclusive dealing on the market. It should moreover scrutinize each enterprise’s role of creating market foreclosure effects by analyzing specific and individual cases. In this case, it is useful for the competition authority to consider purposes and intents of exclusive dealing, circumstances of transaction, size of competitors, period and degree of exclusive dealing, and existence of concerted conduct between competitors.