공정거래법상 공동행위의 부당성과 ‘특별한 사정’ - 대법원 2009.7.9. 선고 2007두26117 판결을 중심으로 -

In applying the Article 19 I on cartel cases under Korean competition law, it is unique that a cartel which has ‘special circumstances’ can be decided legal. In the Freight Carriers’cartel of freight rates case, the Korea Supreme Court(hereafter “the Court”) ruled that the agreement to fix prices should be judged unreasonable in principle, but not prohibited when there were ‘special circumstances’, i.e. when the administrative guidance in accordance with the laws caused the cartel or the cartel challenged had effects on increasing efficiencies of national economy as a whole. The theoretical concept, conditions and limits of ‘special circumstances’ decided in this case should be further clarified, because these factors are very important when deciding an infringement of Article 19 I. First, in this case, the Court didn’t judge the difference between justification of anti-competitive effects and exemption of Article 58, as considering the administrative guidance. However, it was clear that the administrative guidance can be taken into account as one of the conditions for a justification, although exemption of Article 58 couldn’t be granted. Secondly, the author agrees on the Court’s ruling that if the cartel increased overall efficiencies of national economy, it could justify the restriction of competition. When blanced with the anti-competitive effects, the efficiencies should be specified and proved more strictly. In addition, these two ‘special circumstances’ needs to be the restrictive standards in order to avoid any loopholes to the cartel regulation. Finally, it should be noted with caution that the Court considered pro-competitive effects to preclude illegality of so-called hardcore cartel like rate fixing. In previous cases, the Court decided that cartels by association of undertakings could be justified within the meaning of Article 1,which lists a variety of aims of the Korean competition law. So, the decision in the Cartel of freight rates case seems to be inconsistent with the Court’s established precedents. Furthermore, if the concept of pro-competitiveness is interpreted not only as the opposite effects of the anti-competitiveness, but also as desirable effects on the national economy, it is likely to be misunderstood in the enforcement practice.