대규모유통업법의 제정과 운용상 쟁점

Large-Scale Retailers’ Fair Trade Practices Act was enacted in Korea and became effective on January 1, 2012, which is unprecedented in the world. Traditionally, competition authorities have tended to downplay the anti-competitive effects of buyer power. For a long time consolidation in the retail sector has been considered favorably, as it could allow better exploitation of economies of scale and decrease costs of transportation and logistics. Competition among inefficient small shops was substituted by competition by efficient retailers with great benefits for the consumer in terms of lower prices and better quality. Today, with the emergence of large-scale retailers (such as TV Home Shopping, Internet Shopping, Big Mart, together with Department Store) and consolidation of both the retailing and supplying levels into a much smaller number of mega-chains and super-sized suppliers, the relative bargaining strength of manufacturers and retailers has apparently been reversed. During the last few years a number of market investigations by the competition authorities and related institutions have in fact found evidence of practices which seem to indicate that retailers have some form of buyer power: high discounts for more powerful retailers, not related to efficiency of scale or transportation; modifications in the usual negotiated conditions, such as additional discounts; listing fees; slotting allowances; retroactive discounts;contribution to retail expenses; most favourable treatment clause; modifications in the terms of payment. There is also evidence of discretionary power of the retailer in the access to shelves. Many of the practices are in fact unilateral and, given the bilateral nature of the relations giving rise to buyer power, ex post instruments of competition law may be unsuitable. Little effective deterrence seems to result. Korea Supreme Court established that Korea Fair Trade Commission should prove the identification of the Power Buyers’ schemes and their unjustness in the lawsuits. Such violations of the Power Buyers resemble in some sense the invisible crimes, which are lack of indignant victims to assist police investigations and are hardly detected. But the invisible violations can be worse than invisible crimes: under the schemes of violative practices the victims, even though indignant, are obliged to be silent with the coercion of Power Buyers. Such results can not permissible under the constitutional principle of Equal Right. The effects of buyer power must be examined in light of the interrelation between retail and procurement markets. And abuses of the power must be restricted in light of equality on law enforcement even though they have little impact on the final market and on “consumer welfare”in the short term. In conclusion, Large-Scale Retailers’ Fair Trade Practices Act is a good legislative option to prevent the abuse of the Buyer Power that could not be checked before. The Act calls for a definite shift in burden of proof or persuasion, so that the practices and structures with unfair potential can be justified only on clear and convincing evidence of economic gain to be passed on to the public. The dogma that “the antitrust laws protect competition not competitors” might yield to the goals of justice and the laws, which sometimes demand protection of competitors. The Act should be enforced irrespective of the effects on competition, which the Power Buyer’s unfair conduct might have in the market.