경쟁자의 비용 증대를 통한 배제 전략의 경쟁법적 고찰 ― 담배진열 공간 사례를 중심으로 ―

The exercise of Banian market power, often referred to as “raising rivals’ costs,” has so far been discussed in Korea primarily in the context of exclusive dealing. While exclusive dealing in distribution channels can and has been utilized as a strategy to raise rivals’ costs and exclude them from the market, it is wrong to perceive exclusive dealing as the sole or primary form of implementing such a strategy. Moreover, even in the case of exclusive dealing as a strategy to raise rivals’costs, the discourse surrounding the topic has failed to clarify whether and how significant a foreclosure would be required to trigger liability under competition law. The Korea Fair Trade Commission (hereinafter “KFTC”)’s decision on KT&G’s conduct in the tobacco display space in 2015 shows that raising rivals’ costs is a strategy that can take various forms and can also strengthen oligopolistic coordination under certain circumstances. This paper looks at the legal and economic theory behind raising rivals’cost as a strategy and purports to show, among other things, that (i) the strategy can be implemented through various forms of conduct, (ii) complete (or near complete) foreclosure is not required for the strategy to succeed, (iii) the anticompetitive effects of the strategy is not limited to exclusion of rivals (i.e., reduction in market share), and may also include facilitation of oligopolistic coordination. A closer look at the KFTC’s case against KT&G reveals that it may have erred by adopting a faulty liability theory based on KT&G’s unfair competitive methods rather than KT&G’s attempt to strengthen its market power by raising its rivals’ costs.