경성 카르텔에서의 부당한 경쟁제한성과 농축산업의 특수성 고려 타당성 여부 - 서울고등법원 2024. 9. 26. 선고 2022누61146 판결을 중심으로

The challenges of regulating agricultural supply and demand mean that abundant harvests or production surges can drive agricultural good prices below their cost. In some cases, agribusiness operators may even discard their produce because market prices for those crops are too low to justify the cost of harvesting them. Given the special nature of agriculture, which is different from that of other commodities, there may be room for agreements that limit the volume of production. Legislation, such as the Livestock Integration Act, takes this into account. The limit on production at issue in the subject case constitutes a hardcore cartel. In Korea, which does not accept the principle of per se illegality, the burden of proof for restrictions of competition lies with the KFTC; yet, highly restrictive acts such as price rises and production limits are likely to be considered illegal under the Fair Trade Act. In domestic and international jurisdictions alike, the agricultural industry is exempted from the Fair Trade Act or similar antitrust legislation abroad due to its special characteristics. However, the exemption is only applicable when the requirements set by separate legal regulations are met. The existence of exemptions should not be the reason to relax the application of the standards for determining whether limiting production constitutes restriction of competition. The subject case cited constitutional provisions in interpreting the purpose of the Fair Trade Act and the criteria for determining whether competition is restricted by output restriction. However, given that this reflects the state’s policy goals for the agricultural industry, using it as the basis for interpreting the purpose of the Fair Trade Act requires caution. The Fair Trade Act does not deem conduct illegal if its pro-competitive benefits, such as efficiency gains and technological innovation, are found to outweigh its anticompetitive effects. The output restriction agreement at issue in the present case only benefits the colluding firms and has no effect on consumer welfare. On the contrary, consumers are harmed by the agreement, as they have to pay higher prices, for example, for fresh duck meat. In conclusion, unique characteristics of the industry should be considered as the exception to the restriction of competition, i.e., the effect of increasing efficiency, rather than as the reason to change the standard for determining the restriction of competition; the subject case is unreasonable in that respect. While it is clear that the farmer’s paradox needs to be resolved through a policy-making by relevant ministries, considering it as an element to be taken into account in the antitrust law that aims to promote fair and free competition is difficult.