약탈적 가격인하와 가격(이윤)압착 문제에 대한 고찰: 기업메시징서비스 사건(대법원 2021. 6. 30. 선고 2018두37700 판결)을 중심으로

In 2015 the Korean Fair Trade Commission (FTC) charged that both LGU+ and KT, as a vertically integrated telecommunication firm, had separately and unduly set each of theirs prices below the so-called ‘normal trading price (NTP)’ termed in the Korean Monopoly Regulation and Fair Trade Act Decree (MRFTAD) to exclude rivals in the business text messaging service (BTMS) market. It was clear that the issue was about predatory price cutting rather than a price or margin squeeze. In June 2021, neverthless, the Supreme Court of Korea erroneously framed the two cases as a margin squeeze in both FTC v. LGU+ and FCT v. KT by manipulating ‘pricing below NTP’ as a margin squeeze. The Court should have interpreted NTP as a properly estimated cost in the context of predatory price cutting. The Court’s two decisions are neither understandable nor explainable. Even suppose that the two cases were about a margin squeeze, the Court should have addressed the antitust duty to deal. As neither LGU+ nor KT bear that kind of duty, the Court should have required the KFTC to prove the existence of predatory price cutting by LGU+ and KT.