공정거래법상 단독의 위반행위 규제의 체계 - 시장지배적 지위 남용행위로서의 거래거절행위의 위법성, 그 본질과 판단기준

The Full Bench of the Supreme Court of Korea made a landmark decision in the recent POSCO case that dealt with most issues involving in refusal to deal by a dominant firm cases and provided seminal criteria in its determination of illegality for the first time. The decision clarified that supply substitution should be considered as one of the determinant factors in defining a relevant product market. Regarding relevant geographic market, while the court admitted the legal possibility that it could be extended over borderline and stressed that the weight of competitive pressure by foreign competitors should be considered by the court seriously in its finding whether a firm is dominant or not, domestic market is declared to be legitimate in the case at issue despite of active foreign commerce of hot rolled stainless cords and close price correlation between domestic and international markets. The most significant implication is that the decision declared what constitutes ‘unreasonable’ requirement of refusal to deal by a dominant firm that had been left ambiguous. Until the decision, majorities of academia had agreed that the meaning of ‘unreasonable’ requirement was not different from the identical term for unfair trade practices that was traditionally interpreted to mean unfairness that comprehended both unfair schemes of competition and incipiency that might develop to hamper competition, as well as anti-competitive effects. The enforcement of the Korea Fair Trade Commission(‘KFTC’) was in line with the academia. The court in this decision, however, accepted the contrary view that, to satisfy the ‘unreasonable’ requirement, the KFTC should prove both anti-competitive intent and market effects that included probabilities of price increase, output reduction, etc., and the proof of operational difficulties of a competitor alone was not sufficient. The POSCO decision tends to respect constitutional principle of freedom of contract and market discipline, and to advocate the idea that exceptional prohibition to the freedom should be limited to such practices, as defined by modern micro-economics, that cause anti-competitive effects in a market so as to undermine consumer welfare. It is seminal because it has made the Korean Competition Law conform with up-to-date U.S. and European Union competition laws by reconstructing the outdated provisions of the Korean Competition Law which Korea inherited from Japan and Germany 27 years ago. This landmark decision is expected to influence the courts and the KFTC in making their decisions for not only abuse of market dominance cases, which the KFTC recently started to regulate vigorously, but also most unilateral conduct cases. The decision leaves some minor problems, however, mostly its excessive emphasis of the anti-competitive intent requirement, while I hope that the problems would be clarified or resolved in following cases.