독점규제법상 시장지배적 사업자 개념과 관련 문제

The Korean Monopoly Regulation and Fair Trade Act (“MRA”) prohibits the abusive acts of dominant undertaking (“DU”). Therefore, in a case in which the firm in question has not a dominant position, it is not possible to decide that the firm abused its dominant position or market power. For this reason, before deciding whether the conduct in question amounts to abusive practice, the courts must decide first whether the firm in question has market power or not. On the other hand, article 2(7) of the MRA define DU as a undertaking that is able to unilaterally, or with other undertakings, decide, maintain, or change its own price, output, or other trading condition. However it is almost not possible to find out exactly which firm satisfy the definition of DU under article 2(7). For this reason, the Korean Fair Trade Commission (“FTC”) and courts as well have heavily depended on article 4(2) of the MRA that strongly assumes ‘any firm when the total market share of two or three firms is over 75%, except a firm that has below 10% market share’ as DU. According to the article 4(2), even a firm with 10% market share can be identified as DU. Indeed, the Supreme Court decided that a firm with 25% market share is DU in the KIA Motor Car v. FTC (2010. 4. 8 declared 2008Du17707 decision). However, it does not make a sense that any firm when the total market share of two or three firms is over 75% is DU. Because article 4(2) is not confirm with sound competition law and policy, it should be better to delete the article by amending MRA. Or because article 4(2) can only be understood in the context of collective dominance, the article should not be applied to a case in which only one firm’s unilateral conduct matters.