부당한 사업활동 방해행위의 법리- 독일 경쟁제한방지법(GWB)을 중심으로

Legal Doctrine of Unfair Disruption of Business Activities in View of the German ARC Hwang, Tae-hi By protecting the business activities of those market players engaging in legitimate competition, the Monopoly Regulation and Fair Trade Act (MRFTA) of Korea seeks to ensure free and fair market competition. The Korean law defines activities disrupting the business of other competitors either as an abuse of market-dominant position or as unfair trade practices, which are not always easily distinguishable. Even though the differences between the two criteria are not significant in terms of the subject of action and the object of disruption, establishing the legal doctrine of unfair disruption of business activities has taken on added importance since the POSCO decision. With its recent amendment in 2013 to the Act Against Restraints of Competition (ARC, GWB), Germany strictly regulates the use of unfair competitive means against counter-party or competitors in market competition. Above all, the law prohibits the operators with market-dominant power from disrupting the competition of their competitor or counter-party, or from engaging in an activity likely to exclude those competitors or counter-parties from the market. In addition, the law defines leveraging one's superior market power to unfairly disrupt the business activities of those entities with weak market positions in the following two distinct ways: (a) One is the prohibition of an entity with a relatively superior position in transaction from leveraging its superior position to disrupt the business activities of its counter-party; and (b) The other is the prohibition of an entity with a significant power in the same market from unfairly excluding small- and medium-sized enterprises (SMEs) in a competitive relationship with itself. The rationale behind seeking to protect SMEs, which may seem somewhat economically inefficient, through the provisions of competition law is to ensure the fairness of transaction by respecting the freedom of decision of the counter-party, and at the same time to enable free competition to competitors by laying the foundation of market competition. It would be desirable to build on the implications of the German Act Against Restraints of Competition (ARC, GWB) to further define the concrete criteria of unfair disruption of business activities as an unfair trade practice under the Korean competition law.