공동행위의 부당성 조각 항변의 유형별 분석 - 공정거래법 제1조의 해석과 적용 -

As competition law, the Monopoly Regulation and Fair Trade Act (“MRFTA”) is a law whose mission is to promote competition, fundamentally grounded in the premise that “competition is good.” While the MRFTA acknowledges that competition may entail not only benefits but also social costs, and may potentially conflict with other policy objectives, the legislative choice to promote competition expresses a firm normative commitment to its inherent value. This foundational premise of competition law is not a mere slogan-it can serve as a meaningful guide in interpreting and applying the law. A prime example of this is the assessment of whether collusion is unjust (undue) under the MRFTA. Since the Busan Dental Association case, the courts have exceptionally recognized that unauthorized collusive conduct, even if it restricts competition, may be exempt from being deemed “undue” if it significantly contributes to national policy goals encompassed within the ultimate purpose of the MRFTA as stated in Article 1. However, the case law has yet to provide concrete standards for recognizing or evaluating such exemptions, resulting in a lack of predictability for both enforcement agencies and regulated parties. Moreover, the current interpretive approach, which treats this as a question of hierarchical ordering among the various objectives listed in Article 1, does little to resolve the inherent ambiguity. This paper departs from the conventional approach by returning to the foundational premise that “competition is good.” It seeks to clarify the criteria for exempting anticompetitive concerted actions from being deemed “undue” under Article 1 by categorizing the defenses for such exemptions and critically analyzing relevant cases under each category.