공동행위의 위법성 판단에 관한판례상 법리 고찰

Collusion, the most basic of violations in the purview of competition law, is prohibited under Article 19(1) of the Monopoly Regulation and Fair Trade Act (the “Act”) as a type of “agreement between undertakings that unreasonably restricts competition.” The Supreme Court of Korea (the “Court”) has had ample occasion over the past ten years to consider how to assess illegality in horizontal agreements, which makes it fair to say that the basic legal principles have been established: in determining illegality, the Court first defines the relevant market and considers whether competition has been substantially restricted; if so, then the Court considers whether such restriction can be justified. In principle, this illegality test is applied to any horizontal agreement, whether it can be described as a hardcore or softcore cartel. This is because, in contrast to US case law or Article 101(1) of the Treaty on the Functioning of the European Union, Article 19(1) of the Act provides no legal basis for applying different illegality tests, as it makes no distinction between hardcore and softcore cartels. However, the trend that has become apparent in the case precedents is that, while in principle, the Court applies the same illegality test in either context, in practice, it has shown flexibility in how strictly it applies the illegality test in the hardcore and softcore cartel contexts. For example, the Court tends more easily to recognize a hardcore cartel as illegal. The Court does not request a precise definition of the relevant market unless it may impact the analysis of competitive effects; and absent special circumstances, the Court tends to find restrictions on competition relatively easily, although it will consider any special circumstances that do come to light. For softcore cartel cases, however, the Court determines illegality more strictly, balancing the anti-competitive effects with the pro-competitive effects. Given the provisions of Article 19(1), the Court’s approach seems tenable. However, some case precedents do have the potential for being misconstrued to mean that even where anti-competitive effects are found, they can be justified by broad industrial policies or public interests. Given that the purpose of competition law is to protect competition, justifications for illegality based on non-economic efficiencies should be recognized only as narrow exceptions to the rule; accordingly, going forward, more detailed requirements need to be developed for identifying the kinds of justifications that may rebut illegality.