SK 이동통신의 휴대폰 폐쇄 DRM 장착행위의 경쟁제한성판단 - 판례평석: 서울고등법원 2007. 12. 27. 선고 2007누8623 판결(대법원 2011. 10. 13. 선고 2008두1832 판결 확정) -

This article is written to study and criticize the decision for the case of the abuse of market dominant position by SK Telecom with installing the closed DRM on its MP3 mobile phone. This decision is about ‘a de facto exclusionary dealing’, which bring anticompetitive effect by foreclosing the market and distribution channel of competitors. Actually, the Supreme Court endorsed the decision of the high court, deciding that mounting the closed DRM on MP3 mobile phone by SK Telecom is a legal practice in spite of its anticompetitive effect because of the absence of subjective anticompetitive intentions. However, the analysis by the courts in this case was far away from the traditional procedure of antitrust law for analyzing anticompetitive effects in a market, which consists of examination of the foreclosure effect and procompetitive justification by the business practice. Recently, one of the most debated issues would be the exclusionary dealing by a market dominant business. In particular, the concept so called the ‘de facto exclusionary dealing’ has been suggested to control the anticompetitive practices, which in appearance, seems to be a price control strategy, like a predatory price practice or a price differentiating. The most important requirement of the similar strategy to the traditional exclusionary dealing’ has been said as ‘the de facto obligation’ of clients, who contract with a monopolist or a market dominant party. For this reason, if the business’ conducts result in the obligation of the other party, it should be evaluated with the exclusionary dealing acts. For this reason, the court should have focused the market foreclosed effect, rather than the subject requirement of anticompetitive intentions. In the traditional antitrust law perspectives, the strategy bringing in anticompetitive effects should be determined to establish an anticompetitive illegal act, without proving that it would be a reasonably necessary means to accomplish procompetitive efficiency. In this essay, the appropriate method would be suggested to investigate the anticompetitive effects by SK Telecom’s foreclosed DRM software. Especially, in order to check whether the procompetitive justification could be allowed, the several steps including the methods of finding ‘a less restrictive alternatives’ and balancing test between procompetitive effect and anticompetitive effect.