전자상거래법상 온라인 플랫폼 사업자 최혜대우 요구의 위법성과 판단기준에 대한 소고

The Most Favored Nation demand by an online platform operator refers to an online platform operator requiring a user of its online platform to apply the same or more favorable trading conditions, including the price of goods or services traded on its online platform, compared to the price of goods or services traded in other distribution channels. In response to such Most Favored Nation demands, the Fair Trade Commission has imposed corrective orders and fines on online platform operators, focusing on the prohibition of abuse of market-dominant position and the prohibition of unfair trade practices. However, it should be noted that the Most Favored Nation demanded by online platform operators ultimately causes damage to consumers. Therefore, in addition to discussing the competition law aspect, it is necessary to discuss whether the E-Commerce Act, which aims to protect the rights and interests of consumers in e-commerce and mail order sales, should be applied. Analyzing the cases of the Fair Trade Commission, Korean courts, and the United States, it is clear that Most Favored Nation is not illegal in itself, but whether the consequences caused by it are illegal. Therefore, for the application of the E-Commerce Act, it is necessary to examine the illegality and judgment criteria based on the damage to consumers that may occur due to preferential treatment, i.e., information on the price of the product and the fact of the preferential treatment clause. Under the E-Commerce Act, an online platform operator is only a mail order distributor, a mail order brokerage business operator, or a mail order brokerage business operator, depending on whether or not it accepts offers, and an online platform user is a mail order distributor and a requester of mail order brokerage. Applying the provisions of the E-Commerce Act as the main basis, the offense of Most Favored Nation may be subject to ① Prohibitions[Article 21 (1) 1. of the E-Commerce Act], ② Provision of Information on Identity and Transaction Terms of mail order distributor[Article 13 (2) 9. of the Act], and ③ Liability of Mail Order Brokers and Requesters of Mail Order Brokerage[Article 20-2 (4) of the Act], depending on the judgment criteria of individual regulations. Currently, the Fair Trade Commission is promoting the enactment of 「the (tentative)Platform Fair Competition Promotion Act」, while holding a presentation on platform self-regulation, so it is unclear whether online platforms will be legally regulated or self-regulated. In this situation, it is difficult to expect a law that completely prohibits Most Favored Nation demands like France, Austria, and Italy, so it is necessary to apply the current E-commerce Act to eradicate illegal acts caused by Most Favored Nation to minimize consumer damage.