지급결제시스템의 정산수수료(interchange fees)에 대한 공정거래규제법리 - 대법원 지로사건 판결을 중심으로 -

Monetary transaction settlement networks recently have been scrutinized by the antitrust authorities worldwide. The main focus of antitrust and regulatory scrutiny has been on the interchange fees that are collectively determined by the member banks or by the network organization because the antitrust and regulatory authorities view that such collective determination of the interchange fees is likely to cause anticompetitive effects, such as increase in the merchant fees which is then passed on to consumers. Interchange fee was designed to strike a balance between the interests of the issuing side by whom most of the network costs are incurred and the interests of the acquiring side where most of the profits are created. It is a well-known feature of a two-sided market. Without interchange fees, the whole network could not be sustained due to the imbalance between the issuing side and the acquiring side. In a credit cardtransaction, the card-issuing bank in a payment transaction deducts the interchange fees from the amount it pays to the acquiring bank that handles the credit or debit card transaction for the merchant. The acquiring bank then pays the merchant the transaction amount minus the interchange fees. Similarly, in a giro payment transaction, the collecting bank deducts the interchange fees from the amount it pays to the paying bank that handles the collection request from the customers. Although the European Commission challenged the collective determination of the interchange fees, the Korea Fair Trade Commission (“KFTC”) has taken a more lenient stance on such collective determination. In 2005, the KFTC issued a decision which found the member banks of the giro network had colluded to increase the giro fees that are charged to the * Senior attorney, Kim & Chang. 지급결제시스템의 정산수수료(interchange fees)에 대한 공정거래규제법리 171customers by the paying banks. The core base of this decision was that all paying banks had adopted the same amount of giro fee which amount was equal to the interchange fee amount, and this would not have taken place without collusion. The banks filed a lawsuit to overturn the KFTC’s decision,arguing that they had not agreed on the giro fee amount, but agreed on the interchange fee amount which has generally been exempted from antitrust claims by the KFTC, and that due to the special characteristics of the two-sided market and the unique cost structure of the giro settlement network - i.e., continuing loss on the collecting side, the phenomenon of giro fee amount being equal to interchange fee amount was economically sensible and reasonable. If the giro fees fall short of the actual costs incurred by the collecting banks when they conduct the collection activities vis-à-vis the giro payers, the paying bank has to deliver all such fees to the collecting banks as the interchange fee. Otherwise, the paying banks would enjoy profit, while the collecting banks incur losses on a continuing base, in which case the joint venture of giro settlement network could not be maintained due to a conflict of economic interest between the paying banks and the collecting banks. Two different panels of the High Court issued different judgments, one in favor of the KFTC and the other in favor of the banks. The High Court’s decision was appealed to the Supreme Court. In 2011, the Supreme Court issued the final decision in favor of the banks, although it had issued a decision in favor of the KFTC in a similar case in 2008 in which it was disputed whether or not the banks colluded on the merchant fees in a local card payment network when the merchant fees were equal to the interchange fees. The Supreme Court carried out a detailed analysis of the characteristics of the two-sided market, the function of the interchange fee in the giro settlement network,and its cost structure, and then the Supreme Court concluded that what the KFTC presented could not be a sufficient ground to prove the collusion on the giro fees among the banks, particularly given the economic incentives which would make it highly probable that the giro fees should become equal to the interchange fees. The Supreme Court’s decision is quite noteworthy in that the courts are now asked to give weight on the economic incentive analysis when they assess conflicting factual evidence in a cartel case.