독점규제법상 거래상 지위남용 조항의 적용 범위에 대한 비판적 고찰 - 소비자·사업자간 거래를 중심으로 -

Article 23(1)(iv) of Korean Monopoly Regulation and Fair Trade Act and its Presidential Decree [Table 1-2] No. 6 prohibits abuse of superior bargaining position as one type of unfair trade practices, including ‘undue benefits from trading party’ as well as ‘undue disadvantage to trading’. Though there is no doubt that Article 23(1)(iv) was introduced to regulate business transactions between undertakings, the Korean Supreme Court has opined that the provisions of undue benefits from trading party and undue disadvantage to trading party can be also applied to transaction between consumers and undertakings in some cases since 2006. It seems that the Court thought that consumers can be more strongly protected by expanding the scope of application of Artcle 23(1)(iv). However it should be noted that the Court’s opinion may open Pandora’s box which would remove the distinction between autonomous contracts and antitrust concerns. This Article argued that the above opinion of the Court shall be changed in the near future for the following reason: first, the words ‘superior bargaining position’ in Artcle 23(1)(iv) means the superior position of one undertaking to the other undertaking in the continuing business transaction; second, the problem of asymmetric information between consumers and undertakings protection should be addressed by consumer protection laws rather than competition law; and lastly, the real legal issues of the cases in which the Court recognized the violation of Article 23(1)(iv) were actually about the traditional problem concerning interpretation of contracts.