조건부(충성)할인과 시장지배력 남용 문제에 대한 고찰 - 대법원 2019. 1. 31. 선고 2013두14726 판결을 중심으로 -

In 2019, a chamber of the Supreme Court of Korea decicded that Qualcomm’s conditional discountsoffered to Korean cell phone makers amounted to anticompetitive exclusive dealing for the reasons that the discounts in question caused exclusive or foreclosure effect. This decision is not consistent with the effects-based approach and the rule of reason adopted by the 2007 POSCO full bench decision. First of all, the discounts in question were nothing more than pricing. Second, exclusive effect can not be the same as anticompetitive effect because fair competition also causes exclusive effect. Therefore, exclusive effect cannot distinguish anticompetitive conducts with competitive conducts. That’s why the POSCO full bench adopted the effects-based approach and the rule of reason in 2007. According to the POSCO jurisprudence, courts cannot condemm conditional discounts when the KFTC fails to prove anticompetitive effect. The KFTC had never proved anticompetitive effect of the discounts in question. The Qualcomm chamber made an error by failing to follow the effects-based approach of the 2007 POSCO full bench decision.