공정거래법상 시장지배력 판단기준에 관한 고찰

The concept of market dominant entrepreneur in the Monopoly Regulation and Fair Trade Act(MRFTA) can be traced to the concept of monopolistic and oligopolistic entrepreneurs in the Prices Stabilization and Fair Trade Act enacted in 1975. The object of designation system of monopolistic and oligopolistic entrepreneurs was to control market prices through price report to the government by them. The definition of the monopolistic and oligopolistic entrepreneurs in Prices Stabilization and Fair Trade Act was similar to that of the present market dominant entrepreneurs. However, the Enforcement Decree of Prices Stabilization and Fair Trade Act defined them as one or a small number of entrepreneurs in markets with high concentration, which is different from market dominant entrepreneurs in MRFTA. As a result, the monopolistic and oligopolistic entrepreneurs came to mean entrepreneurs which should be regulated through price reports. In the MRFTA enacted in 1980, the market dominant entrepreneur was defined in a similar manner to that in German Competition Law(GWB). However, the Enforcement Decree of the MRFTA defined the market dominant entrepreneur based to market shares like the previous Prices Stabilization and Fair Trade Act. Therefore, Korea Fair Trade Commission had designated the market dominant entrepreneurs according to the previous practices. There was no room for the concept of collective dominance discussed in EU competition law. In the 1999 revision of MRFTA, the preliminary designation of the market dominant entrepreneurs was abolished and ex post facto test was introduced instead. However, there were no big differences in practices of Korea Fair Trade Commission, because the Act used the previous market share criteria to evaluate market dominant position similarly. Practices like this have some problems in that there is no considerations about competition situations and they are against basic economic theory. There seems to be need for revision of MRFTA on this moment.