유통거래 관련 불공정거래행위 금지의 최적화 방안 : 금지요건의 조정을 통한 과잉규제의 억제 모색

Over the last four decades, the U.S. Supreme Court has increasingly decided antitrust cases in favor of defendants, relied on the rule of reason analysis and expressed featured economic analysis in its reasoning. The new learning in antitrust economics underlies the trend of defendants’ increasing win ratio. Concerns about over-deterrence raised by private actions also has great significance in this trends and the formation of the pro-defendant body of antitrust law. This is especially so for the application of standards governing dominant single firm conduct. They feared that mandatory trebling of damages in cases presenting competitively ambiguous dominant firm conduct threatened to deter legitimate business behavior. Recently the Korean Antimonopoly Act and special acts were revised or enacted as the so-called economic democratization legislations. Standards governing unfair trade practices were changed and sanctions imposed against the offense were enhanced. The systems for the activation of private enforcement were introduced or proposed. Now comes the day when a bias in favor of false negatives (Type II errors; under-enforcement) should be adopted.