독점규제법 위반행위에 있어서 주관적 요건의 검토

The Korean Supreme Court says that the subjective requirements, asanti-competitive intent or purpose, must be needed at the judgment of theabuse of market dominant power, as well as the competition restraints effects. Regulations with regard to the abuse of market dominant power in article 102in TFEU understand the concept of abuse is an objective, and subjectiverequirements, such as anti-competitive intention are not consideredindependent. The objective characteristics of the behavior in the relevantmarket can be crucial in determining whether the abuse. In Section 2 of the Sherman Act as to prohibition of monopolization orattempted monopolization, the subjective requirements of the behavior wouldbe at least accepted as an essential consideration. However, this approachmust be understood in terms of the different legal system, regulating themonopoly itself. The issues could be raised in determining the illegality of cartel, too. In thisregard, article 101 in TFEU mentions explicitly the purpose of competitionrestraints as the requirements of the regulations of cartel. But the purpose inthis article proved by nature, in a case where the effect of the competitionrestriction exists, and could not be understood as a subjective requirement. Competition Law violations in the point of view of the subjectiverequirements of the criminal law could be a problem.