공정거래법상 경쟁자 간 정보교환행위의 평가에 관한 연구

Various forms of information exchanges among competitors which enhance market transparency have potential harms to competition as well as possible pro-competitive effects. Main possible anti-competitive effects of information exchanges among competitors is its usage as an instrument for reaching and maintaining anti-competitive agreements among competitors. They also make anti-competitive tacit coordination among competitors more feasible particularly in oligopolistic markets without an explicit agreement. The Article 19 (1) of the Monopoly Regulation and Fair Trade Act (the MRFT Act) (Prohibiton of Unreasonable Concerted Actions) does not explicitly provides for prohibition of “concerted practices” as found in the Art 101 of the Treaty of the Functioning of the European Union and in similar competition law statutes. On the ground of such ommission in the provision, some lower courts have held that stand-alone information exchanges cannot constitute a unreasonable concerted action as prohibited under the MRFT Act. In addition, some reviewing courts as well as the Korea Fair Trade Commission, the Korean competition authorities does not seem to be clearly aware of the distinction among theories of possible anti-competitive harms resulting from information exchanges among competitors. As a result, they failed to apply coherent and systematic criteria in evaluating information exchanges among competitors under the MRFT Act. The Supreme Court may hopefully get rid of such confusion and unclearness in appellate proceedings. Otherwise, prompt legislative improvement is in order.