공정거래법상 거래상지위 판단기준 개선 방안에 관한 소고

In this article, the author focuses on situations in which differences in bargaining power can arise between the parties through economic discussions – i.e., Nash bargaining solution, transaction cost economics, and then review foreign cases that regulate the abuse of superior bargaining position, especially in Japan and Germany. With the overview of the current situation in Korea, the author concludes a method for improving the standards for superior bargaining position in following framework. First, the superior bargaining position at the beginning of the transaction should be reviewed based on external options. However, author argues that when the absence of external options is result from efficient competition of the ‘doer’, it should not be deemed as superior bargaining position in the MRFTA. Next, when transaction is going on, the author articulates that the superior bargaining position should be recognized based on locked-in situation due to relationship–specific investment with significant asymmetric transactional reliance. However, author emphasizes that even in on-going transactions, when effective external options exist to the counterparty, superior bargaining position should not be recognized. Further, author argues that locked-in situation cannot be established simply by the fact that the contract is still in progress, and that even if a relation-specific investment exists, superior bargaining position may not be recognized when the investment is self-inflicted. Also, author suggests that significant reliance should be used as an indicator to restriction of counterparty’s economic freedom. Author continues that significancy should be determined differently considering the circumstances of each case, but it is desirable to set a safety harbor of 10% of dependency to secure predictability.