불공정거래행위로서의 배타조건부 거래행위의 위법성 판단 기준

The Monopoly Regulation and Fair Trade Act of Korea(“Korean antitrust law”) has two regimes dealing with exclusive dealing. One is abuse of dominance. The other is unfair trade practice. The provision on the latter one is section 23 of Korean antitrust law which covers from vertical restraint to unfair method of competition broadly. This article argues that the illegality element of exclusive dealing as unfair trade practice in Korean antitrust law should not be freedom of trade, but anticompetitive effect. Competition authorities of the U.S. and EC have focused on foreclosure effect triggered by exclusive dealing in that competition concerns from exclusive dealing is inter-brand restriction of competition. Recently, criteria judging illegality for exclusive dealing as vertical restraint have been aligned with abuse of dominance cases. Moreover, Korean antitrust law has unique provisions such as abusing trade position to prevent forced purchasing etc. For these reasons, anticompetitiveness should be core for exclusive dealing as unfair trade practice. Next, criteria judging illegality for exclusive dealing should be consistent with legal standard for vertical merger to prevent giving firms from having biased incentive for vertical integration. Finally, when assessing cumulative foreclosure effect, requirement of substantial contribution to aggregated foreclosure should be introduced, given EC guideline and the U.S. case law.