시장지배적 사업자의 끼워팔기의 위법성 판단기준: 최근 미국 제9연방항소법원의 해석을 중심으로

A recent decision of the U.S. Court of Appeals for the Ninth Circuit on tying,Brantley v. NBC Universal, Inc. (2012), moved tying doctrine in the direction to reduce error costs by bringing an overly prohibitory liability rule, which was established by the U.S. Supreme Court in Jefferson Parish Hosp. Dist. v. Hyde (1984), reflecting economic learning. The Ninth Circuit, affirming the district court, held that plaintiffs’ claims of ‘higher prices’ and ‘reducing choice’ were not enough to establish anticompetitive harm and thus there should be no tying liability without substantial tied market foreclosure or exclusion. In contrast, the Monopoly Regulation and Fair Trade Act (MRFTA) of Korea, a counterpart of the Sherman Act, prohibits exploitative abuses of monopolists. The MRFTA might still be triggered by ‘substantial’ injury to consumers through ‘higher prices’ and ‘reduced choices’ even without an impact on competition. As a result, certain types of tying, which are not subject to the Sherman Act scrutiny, could still lead to a conflict with the MRFTA. This article, juxtaposing two jurisdictions, suggests in the conclusion that it be a better competition policy to tolerate, at least for a short period, monopolists’tying having no impact on competition so as to protect competitive process. This policy proposal is grounded upon the following observations: first,monopoly profits gained by charging supra-competitive prices or reducing outputs can be regarded as rewards for an entrepreneur who has achieved success in markets through “growth or development as a consequence of a superior product, business acumen, or historic accident”; second, it is also rational in the economic sense for monopolists to set higher prices in order to maximize profits; third, convicting monopolists for exploitative abuses seems more legitimate in such a jurisdiction as the European Union where integrating a common market is “the most fundamental objective” of competition law. Therefore, condemning monopolists’ tying having no injury to competition had better be held back because it could hurt competitive process in the long term – markets do reward what one does, not what one is.