인터넷제공사업자(ISP)와 콘텐츠제공사업자(CP) 간 망 이용대가 관련 판례 분석을 통한 민사법적 고찰 및 입법 제안 - 서울중앙지방법원 2021. 6. 25. 선고 2020가합533643 판결ㆍ전기통신사업법 개정을 논하며 -

The increase in subscribers to Over-The-Top (OTT) platform services has led to a new dispute between domestic Internet Service Providers (ISPs) and Content Providers (CPs) in South Korea regarding network usage fees. In particular, in South Korea, Netflix has filed lawsuits against SK Broadband, demanding the absence of an obligation to negotiate and confirming the absence of an obligation to pay network usage fees. This has led to a surge in societal interest in the matter. Additionally, discussions about introducing legislation related to network usage fees are actively taking place internationally, centered around the EU's “Gigabit Connectivity Package.” This study reviewed the key points of the court decision in the dispute between Netflix and SK Broadband. We confirmed that the court decision did not categorize the payment obligation for network usage fees as unjust enrichment, but did not specify the nature of the obligation. Accordingly, we approached the issue with a different logic than the precedent. This paper went through the following argumentative process to clarify the nature of the obligation to pay network usage fees. Firstly, in accordance with the legal interpretation of Article 2, Clause 11 of the Telecommunications Business Act, Article 47, Clauses 1 and 2 of the Commercial Act, it recognized the paid nature of SK Broadband's internet access service. Since the principle of mutual offsetting does not apply between Netflix and SK Broadband, it confirmed the existence of Netflix's obligation to pay network usage fees. It was determined that in the absence of mutual agreement on crucial aspects of the contract, such as the scope and method of payment for network usage fees, the contract is deemed invalid. As a result, the legal nature of the obligation to pay network usage fees was considered a statutory obligation. Furthermore, following the initial judgment, SK Broadband raised a counterclaim for unjust enrichment, potentially altering the existence of SK Broadband's usage license. Depending on the timing, legal rights could vary, leading to a division into distinct phases. Prior to the counterclaim, there exists a right to claim reimbursement for administrative costs by the administrator and a right for merchant's compensation. Subsequently, the right to claim unjust enrichment and damages for unlawful acts were established as conclusions. In addition to the legal interpretation, this paper also proposed legislative measures to create a fair coexistence environment between ISPs and CPs. It analyzed representative amendment bills pending in the National Assembly and legislative discussions on network usage fees in foreign countries. Ultimately, it devised a form of amending or adding new provisions to the Telecommunications Business Act, including Articles 50, 52, 51-2, 104, and 95, which mainly included prohibiting discriminatory conditions as a type of prohibited act, providing legal grounds for a survey of the current status of network usage and provision, and amending provisions to exclude certain subjects from the application of penalties. The network usage fee dispute between SK Broadband and Netflix is not a one-time dispute, but a crucial issue that sets the standard for disputes between ISPs and CPs. This paper presents a perspective on viewing the network usage fee issue that has emerged, and hopes for the development of fair ways for ISPs and CPs to coexist in the future.