혁신시장에서의시장지배적지위남용에관한몇가지문제 -멜론 사례를 중심으로-

In the case of Posco’s unilateral refusal to deal(Korean Supreme Court 2002du8626) and Melon Service(Korean Supreme Court 2008du1832), the Korean Supreme Court requires the intent or purpose to maintain and consolidate monopoly as well as objective requirements about the Abuse of Market-Dominant Positions. But It must be interpretation conformable on the legislative intent of the fair trade act and operation meeting requirements for efficient trial that requirements to prove the concern of restraint on competition be divided into two parts of ① the whole static or price competition and some dynamic or technical competition relatively easy to prove and ② the rest of dynamic or technical competition and justification factors to exercise the intrinsic function of marke‘t(② factor’named‘business justification factor’), and the former be proved by the authorities and the latter be proved by entrepreneur. In Melon case, on the assumption of this abuse system, the business justification factor seems to be proved because adoption of closed DRM is not competition-restrictive but more competition-accelerative in consideration of efficiency of new market expansion, closed DRM is justifiable with regard to inter-operability as well as means of copyright protection, although the melon service of SK telecommunication appears to be competition-restrictive. We have to consider the amount of innovative efficiency of new market expansion more significantly in terms of business justification factor judgement, especially in the field of such high technology leveraging market dominating power as melon service.