공정거래법 상 위계에 의한 고객유인행위와 소비자 보호 - 휴대폰 출고가 사건을 중심으로 -

Fair competition is achieved through a process of judgment in which the customer gets the correct information of products or services. In other words, if competition is well activated, consumers’ choice may be maximized and consumer welfare may increase. In this process, unfair customer inducement resulting from providing consumers with incorrect or misleading information may interfere with consumers' choice, distorting or limiting the rational choice of the counterparty, and may have an unfair impact on competition, thereby preventing the benefits of competition from attaining consumers. In the case of an unfair customer inducement by deception, the degree of deception is misleading the consumer, or the difference between the terms and conditions of the competitor's transaction and the 'significant' difference in the customer's choice through it. Such violation may infringe the customer's interests as well as the fair competition. In the case of the cellphone pricing, the service charge could be lowered as the component price of the handset was lowered through vertical contract instead of compensating for the increase in the cost of the high handset supplement. In addition, in the case of self-contained handsets without subsidies, the comsumer prices are higher than those purchased through a mobile network operator with subsidies. Thus, purchasing subsidies for cellphone handset can be, somewhat, a means to promote competition and can be seen as an advantage to consumers and vice versa. Therefore, it should be necessary to compare the degree of infringement of profits, such as the distortion of market and competition limited by inducement, and the consumer's right to choose, to determine whether the act has impeded fair competition. In this case it should be made a premise that normal practice for all manufacturers and mobile operators to disclose information about subsidies transparently to all consumers with cellphone pricing if such practice to be infringed MRFTA. Moreover, It should be prudent from the point of view of competition and consumers welfare in acknowledging that such action are 'deceptive' and that it has impeded fair transactions by luring customers of rival operators comparing normal business practices.