시장지배적 지위 남용행위의 판단기준 개선방안

This article aims to examine the contents of the standard for determining abuse of market-dominant position presented at the current competition law, presidential decree and guideline, and to derive problems from them, whereby to suggest the improvement scheme of standard for determining abuse of dominance based on implications obtained through the examination of recent application cases. This article is divided into 4 sections. Following this introduction, Part II explains the way in which the guideline presents the standard of determining. Establishment of abuse of dominance requires presence of the following three elements: market-dominant enterprises, specified act apparently indicative of abuse, and unreasonableness. In determining whether a firm is market dominant, putting too much stress on its market share can be pointed as a problem mainly because of the statutory presumption. Regarding the standard for abusive conducts, problems are found both in the way of categorizing conducts and in the way of setting the standard of illegality. Part III offers careful and systematical analysis of recent abuse of dominance cases against which court decisions have been made. In this part, courts' approach to assess elements for establishing abuse of dominance is compared to that of the Korea Fair Trade Commission. It remains to be seen whether the Supreme Court would attempt to establish bright line rules for presumptive illegality, identifying either determinative or more important factor in assessing the likely effect of conduct. Finally, Part IV contains a few suggestion to improve the standard for determining abuse of dominance element by element. Particularly, it is suggested to rearrange categories of conduct by dividing exploitative abuse and exclusionary abuse and establish the standard of illegality as general one applying commonly and conduct- specific ones applying to each conduct category.