시장지배적 지위 남용행위의 ‘부당성’에 관한 연구 - 판례를 중심으로 -

As the court decisions with precedential value have been accumulated after the POSCO decision which laid out basic and fundamental legal principles in determining the unreasonableness of the abuse of market dominance, the legal principles on this topic have evolved and developed considerably in Korea. In the POSCO case the Supreme Court of Korea provided a two prong test to determine how unreasonableness can be analyzed and assessed: one is a subjective element of whether or not there is an intent or a purpose to maintain or strengthen the monopolistic position in the market, and the other one is an objective element of whether or not the activities in question would raise concerns about anti-competitive effect. Thereafter, in the cases following the POSCO, it became apparent that the legal framework analyzing unreasonableness used in the POSCO would universally apply to average exclusionary abuse cases. On the other hand, in the cases dealing with practices which harm the interest of consumers, the Supreme Court of Korea adopted a different two prong test to determine unreasonableness: one is to see whether or not there is an intent or a purpose to realize excessive profits from the monopolistic behaviors as a subjective element, and the other is to see if the activities in question would have, or raise concerns about, the effect of harming the interest of consumers as an objective element, and thereby making it clear that a different test would apply to exploitative abuses. While the legal principles regarding the unreasonableness of the abuse of market dominance has gradually evolved and been established, there also remain several issues left to be resolved. First of all, there has been criticism on over-emphasis of the subjective element in determining unreasonableness, and this issue should be discussed further. It is also necessary to give proper attention and establish an appropriate place for mitigating factors and justifications. In addition, the long-debated issue of delineating the line between the abuses of market dominance and unfair business practices must be resolved. That being said, the efforts should also be made to establish a clearer guideline on how to prove the potential/probability of the exclusionary effects or the exploitative effects, and establish tests to find the illegality by each type of abuses.