플랫폼에서의 가맹계약에 대한 거래조건차별 위법성 여부에 관한 판단* - 서울고등법원 2025. 5. 22. 선고 2023누50891 판결을 중심으로 -

The prerequisite for discriminatory transaction conditions among abuses of market dominance is whether the other party to the act in question is an “equal trading partner.” Kakao Mobility engaged in discriminatory behavior toward franchise drivers and non-franchise drivers through its dispatch algorithm. The Fair Trade Commission deemed the behavior unlawful. However, the court ruled that franchise drivers and non-franchise drivers were not “transaction counterparts in an equal transaction,” and therefore the behavior did not constitute discriminatory treatment of transaction conditions. The question of who constitutes a “transaction counterpart” in discriminatory treatment of transaction conditions has not been extensively studied. In a similar case involving Golfzon, discrimination between franchisees and non-franchisees was deemed justified. However, the Kakao Mobility case shares similarities with the Naver Shopping case rather than the Golfzon case. This is because, in general calls (not franchise calls), franchise drivers and non-franchise drivers should receive equal treatment. This is similar to the self-preferential treatment by online platform operators. Kakao Mobility sought to strengthen and maintain its dominant position in the taxi franchise service market by favoring its own franchise drivers in “general calls.” Transaction condition discrimination ultimately requires that “actors in an equal market not be discriminated against without reasonable grounds.” “Transaction counterparts in equal transactions” should also be interpreted in this context.