시장지배적 사업자의 할인행위에 대한 공정거래법 적용과 그 시사점

Regulation on the discount practices is not easy to find in the Korea where the system focuses on the consumer's economic interest. The narrow exception may be regulation by the Act of Regulation of Monopoly and Fair Dealing (hereafter “Fair Dealing Act”), but it has been debated in the scholar groups in relation to the predatory pricing only because regulation on abuse of dominant firm's status is on the fledgling stage. The intensified global competition among firms and tightened regulation to the dominant firm by Korea Fair Dealing Agency, however, materialize the regulation of the discounting practices into the pending cases in the court. Considering the beneficial effect of the discounting practices, the consequences will set out the way of regulation of dominant firm in the anti-trust law area. The range of anti-trust regulation on the dominant firm's discounting practices will depend on how court interprets the unreasonable exclusionary conduct of dominant firm in the end. The U.S, advanced the regulation of the unreasonable exclusionary conduct with the Sherman Act early in history, has developed the precedents toward focusing on the concrete exclusionary effect rather than purpose and intents of violator under the influence of Chicago School. After the Supreme Court Decision on November 22, 2007 Case No. 2002Du8286, the standard of dominant firm's unreasonable exclusionary conduct requires to prove objective anti-competitive effect as such rise of price in product, reduction in product distribution etc. unlike impediment of fair dealing in the general unfair practices. The factors which decide the fate of individual cases are category of conducts and social recognition of victims and violators in the precedents. This standard will apply the same way in the discounting practices. The on-going issues in the anti-trust law related to the dominant firm's discounting practices are “loyalty discount” in the same products and “mixed bundling discount” in the different products. The problem of loyalty discount is whether it could be treated as a kind of unlawful exclusive dealing. In this area, EU assumes aggressive attitude against loyalty discount as an unlawful exclusive dealing while U.S. treats loyalty discount as a lawful quantity discount. Korea Fair Dealing Agency decides loyalty discount as unlawful exclusive dealing in the Intel and Qualcomm cases, but the ground of decision leaves doubt considering Supreme Court Decision on Case No. 2002Du8286. Mixed bundling discount produced contradictorily results in U.S. courts which adopt strict attitude against tying and this contradiction gathered the critics and comments. However, weak tying regulation in Korea will not produce regulation on this practice promptly. As a conclusion, anti-trust regulation against discounting practices should be prudent when we consider chilling effect of regulation even though the regulation of dominant may be needed in other areas.