공정거래법상 재판매가격유지행위 규제의 입법적 개선 - 최저재판매가격유지행위의 위법성 판단기준을 중심으로 -

The Korea Supreme Court recently held that even minimum resale price maintenance should be allowed under the Korea Monopoly Regulation and Fair Trade Act (hereinafter ‘KMRFTA' or 'Act) if its pro-competitive effect outweighs its anti-competitive effect. This holding was quite surprising because most of commentators including Korea Fair Trade Commission (hereinafter ‘KFTC'), the Korean competition authority had long opined that the minimum resale price maintenance was illegal per se in light of the explicit provisions on Section 29 (1)of the KMRFTA. The Korea Supreme Court was presumably influenced by the Leegin decision rendered by the U.S. Supreme Court in 2007. The U.S. Supreme Court also overruled the per se rule applied to minimum resale price maintenance which was one of the oldest antitrust precedents. The Court explicitly based its holding upon various pro-competitive potentials of resale price maintenance which mainstream economists have consistently suggested. It relinquished old common law ‘rule against unreasonable restraints upon alienation of property' reflected in the per se rule against the minimum resale maintenance. Instead the Court emphasized its actual effect upon competition as antitrust guiding principle applied to practices setting resale prices. Now, it is time to consider legislative amendments on the prohibition of resale price maintenance and make up proper rules to evaluate trade practices fixing resale price under the KMRFTA. The legislative amendments and law enforcement rules should fully take into consideration both the harms to competition and offsetting economic benefits of resale price maintenance. The focus should be upon its effect on inter-brand competition, intra-brand competition and efficient distribution of branded goods, not the old notion of free exercise of price setting power by resellers.