과대집행과 과소집행의 딜레마 – 경쟁법의 숙명

In many cases, one may arrive at completely different conclusions depending on the theory or position adopted in applying competition law. This is primarily because the application and enforcement of competition law necessarily involve more prediction and estimation than those of other areas of law. It is true that competition cases involve issues related to what is expected to happen in the future rather than what has already happened or what would have happened had there been no anticompetitive behavior. Competition cases also require judgment based on abstract ideas and theories rather than existence of specific facts. Due to these characteristics, the application and enforcement of competition law inevitably entail errors, which are attributable to peculiarities of the law. The two main errors widely discussed are (a) overenforcement of certain behaviors erroneously condemned as being anticompetitive when in fact the behaviors were in compliance with competition law (False Positive, Type I Error) and (b) underenforcement of certain behaviors erroneously condoned when in fact the behaviors were in violation of competition law (False Negative, Type II Error). Since these two errors trade-off each other, various discussions have been conducted in both the U.S. and E.U. on which error would be more preferable. The courts and enforcement authorities in the U.S. and E.U. tend to be biased in favor of underenforcement. The Supreme Court in Korea has also emphasized the risks of impeding efficiencies in overenforcing competition law in its decision on POSCO. However, there is considerable doubt as to the justifiability of presuming that erring on the underenforcement side is preferable to erring on the overenforcement side. Furthermore, considering our economic realities, we should be more concerned with the harms resulting from underenforcement rather than those from overenforcement of competition law. Nevertheless, in determining which theory or method should be adopted to dispel the concerns on underenfocement, we should take a behavior- specific approach after considering the problematic behavior’s type and characteristics. In addition, discussions that are more productive and better reflect our economic realities can be derived when they are supported by heuristic and empirical research on the actual errors resulting from applying certain principles and theories in enforcing competition law.