온라인 플랫폼 사업자의 이용약관에 대한 경쟁법적 규제 - 독일 Facebook 사건의 시사점을 중심으로 -

In regulating abuse of dominance cases concerning online platforms under competition law, exploitative abuse should be the main focus in light of the practices that violate the interests of platform users by platform undertakings. The exploitative practices of online platforms include excessive pricing or imposition of any terms and conditions on users. In particular, considering that major online platforms are generally dominant undertakings in the relevant market, prohibition of abuse undermining consumer interests stipulated in Article 3-2 (1) of the Monopoly Regulation and Fair Trade Act may have significant implications. In this sense, the German Facebook case could provide important implications. Due to the complexity and opacity which arise from the contract made by online platforms, consumers in online platforms are not only structurally inferior to information or to bargaining power, but they are also in a situation where there is not effective competition due to the presence of dominant undertakings in the relevant market. It would be difficult for consumers to refuse to enter into contracts with dominant undertakings and have opportunities to enter into contracts with other undertakings. Under these dual constraints, the purpose of the latter part of paragraph 5 in Article 3-2 of the Korean Competition Law is to protect consumers whose interests are likely to be infringed directly. Furthermore, this would require a broader interpretation of the concept of consumer interests. The reference for this concept of consumer interests could be the ‘self determination’ that is the premise of freedom of contract, and the basic rights of consumers under the Framework Act on Consumers. In particular, factors that violate consumer self-determination include constraints on the possibility of alternative choices, restrictions on accessing the information on which choices are based, or imposition of disadvantages terms and conditions of contract, which are the main reasons for undermining consumer interests.