WTO보조금분쟁에 있어서의 경쟁법상 관련시장 획정법리의 시사점

Subsidy disputes, characterized as being complex and diverse in general, require in-depth consideration of relatively new jurisprudence, that is, definition of relevant market. In fact, the concept of relevant market is more evidently witnessed in the field of competition law. A rough overview of the existing domestic competition laws from many countries shows that they introduce relevant market jurisprudence as a useful instrument for the evaluation of the degree of market power which the specific monopolist under investigation has taken over effectively. In particular, U.S. Antitrust law, which is regarded as being highly influential in the development of domestic competition laws throughout the world, has provided definite meanings of relevant market. According to this law, relevant market is defined as the set of combination of relevant product market and relevant geographic market. This definition may be applicable to the relevant market jurisprudence under the WTO Agreement on Subsidiesand Countervailing Measures (“SCM Agreement”) since it seems systematical and reasonable to define the relevant market by determining individual product-based market and geographybased market, respectively and taking account of both markets in overall. A study on most recent subsidy disputes captures that the Appellate Body also acknowledges the necessity of the definition of relevant market and leaves the door of referring to the U.S. Antitrust law open. However, as stated before, the Appellate Body has just made superficial discussions of relevant market issue. It has not provided any specific guidelines on the basis of which the relevant market is defined. Furthermore, relevant market jurisprudence under the U.S. Antitrust law seems not providing useful guidelines applicable to the definition of relevant market under the SCM Agreement since those two jurisprudence intrinsically pursue for different object and purpose each other. Therefore, the concept of relevant market requires us to search for specific consideration factors for the appropriate definition of relevant market. This work is the beginning of the calculation of benefit and the essential prerequisite for the application of market benchmark jurisprudence. However, this is not that straightforward because the concept of market is very abstract and flexible by nature. Moreover, universal and absolute definition of the market can not be assumed realistically. Above all, government programs at issue have a tendency of getting complex and diverse, sometimes even unique or ambiguous such as debt restructuring program highlighted in Japan-DRAMs case. This situation poses the necessity of appropriate guidelines consistently and comprehensively applicable to all kinds of government programs without any exception. Indeed, to ensure effective application of market benchmark jurisprudence depends on how specifically relevant market could be defined. The establishment of adequate guidelines serves to achieve this objective, further helps identify applicable market benchmark, and ultimately facilitates accurate calculation of benefit.