배타조건부거래의 위법성 판단에 관한 검토- 최근의 판례를 중심으로

An exclusive dealing contract itself is neutral to market competition. Itscompetitive/anti-competitive effect is mainly dependent on the market positionof undertakings and market situations. In a case where a dominant supplierentered into exclusive dealing arrangements with most of dealers, they mayresult in foreclosure of competitors or raising rivals’ costs to accessdistribution channels. On the other hand, when such agreements are used bynew players, they may facilitate their market penetration and are more likelyto promote competition. Therefore, when determining illegality of exclusivedealings, detailed market analysis is required. The Korean Supreme Court analyzes exclusive dealings basically based on harmto competition. Plaintiffs including Korean Fair Trade Commission(hereinafter ‘KFTC’) may prove the harm through showing direct evidencesuch as increase in price, decrease in output, and restriction on diversity orinnovation. In Nonghyup case, exclusive dealing contracts adopted byNonghyup with manufacturers helped Nonghyup maintain its 100% marketdominance in fertilizer distribution market. The court found such behaviorillegal abuse of market dominance. It is also allowed to infer the harm tocompetition through foreclosure or raising rivals’ cost effect. In HyundaiMobis case, the court recognized that Hyundai Mobis possessed a marketdominant position in automobile parts market. The court concluded that itsagreement with dealers to handle only Hyundai Mobis products hindered itscompetitors to access to the dealers. While exclusive dealings of undertakingsless than 30% of market share are as a general rule in safe harbor in theUnited States and European Union, Korea has a narrower safe area, i.e. lessthan 10%. To increase predictability for business community, it is preferableto expand the safety zone. Korean Monopoly Regulation and Fair Trade Act (hereinafter ‘MRFTA’) forbids* Attorney, Kim & Chang, Ph.D. 46 특별논단exclusive dealing as a form of unfair trade practices as well as abuse ofmarket dominance. With regard to exclusive dealing as unfair trade practices,the KFTC and the court view that it is illegal because of either harm tocompetition or limits of counterparty’s free will. In S-Oil case, the courtcondemned S-Oil , the fourth provider with 13% share in gas market, for itsrequirement contracts with a part of gas stations. In this case, the marketforeclosure rate was only 2.71% and S-Oil entered into requirementagreements to promote its brand and service. S-Oil ruling was too obsessedwith the proposition that standard for abuse of market dominance and unfairtrade practices should differ. Such strict punishment for exclusive dealings ofminor companies or new entrants may block active competition and is againstthe MRFTA’s goal to “promote fair and free competition.” The court needs torethink S-Oil ruling. In the recent Hyundai Mobis case where both abuse ofmarket dominance and unfair trade practices were at issue, the SupremeCourt did not cite S-Oil ruling.