시장지배적지위남용행위에서 경쟁제한성에 대한 판례비교- Dentsply 사건과 포스코 판결의 비교분석 -

The supreme court through Posco case has identified the individuality of injustice of abuse of market dominant power, posting the difference from injustice of unfair trade behavior. Namely, injustice would be identified if behavior forecloses competition by using market power and maintains monopoly ,not merely bar competitors or damage those. Prior to Posco case, there had been Dentsply case, which were related to how to understand and specify the injustice of abuse of market dominant power in United States. When it comes to deciding whether the behaviors such as a refusal to deal or exclusive trade contract keep competition being restricted,which level of restricting competition is the issue. The Korean supreme court found that if there existed alternative for business under the exclusive policy and it was possible, it would have not been anti-competitive. On the other hand, the Circuit court in U.S found that it would be desirable standard for evaluating anti-competitiveness, not merely possible alternative, but practical or feasible and pose a real threat to monopoly abuse behavior. Seoul High court stated similar view on anti-competitiveness with the circuit court in U.S, noting that if the challenged behavior causes a substantial barrier for competitors not to function sufficiently, it would be anti-competitive. However, in case of determinating injustice of abuse of market dominant power, if the standard of the circuit court in U.S is applied, it would be concern that this law might be used to protect not competition, but competitors excessively.