온라인 플랫폼 사업자의 시장지배력 남용 판단 시 ‘기본권의 상황적 구속력’?- 독일의 논의를 중심으로 착취남용 적용 가능성 -

This article seeks to examine the novel implications of the concept of the “Situational Binding of Private Actors to Fundamental Rights”, as articulated by the German Federal Court of Justice(“BGH”) in the Facebook case, for the enforcement of the Korean Competition Law. Furthermore, it aims to identify practical approaches for the harmonious integration of fundamental rights with competition law. The principal points underscored in this study are as follows. Firstly, there exist evident limitations to the direct application of BGH’s legal doctrine within the South Korean context. Given the differences in the fundamental rights frameworks and theoretical underpinnings between Germany and South Korea, an indiscriminate adoption of the situational binding effect of fundamental rights may jeopardize the dual structure of public and private law, as well as the principle of private autonomy. Moreover, such an approach could potentially undermine the foundational principles of competition law. Nonetheless, in circumstances where the market and social power of online platform operators threatens competitive order, specialized interventions within competition law that duly consider the impact on fundamental rights may be warranted. Secondly, it is imperative to identify a connecting mechanism that preserves the normative significance of the Situational Binding of Private Actors to Fundamental Rights while mitigating its adverse consequences. This paper proposes that such a mechanism may be found within the control of exploitative abuse under the Fair Trade Act. Specifically, the “small general clause” (act that may considerably harm the interest of consumers in the Korean Competition Law Art. 5 I (v)) possesses normative independence and allows for the possibility that a legal doctrine analogous to that in the could be applied in the form of an “indirect third-party effect”. The influence of fundamental rights assumes heightened importance when controlling online platform operators with super-dominance(position of dominance approaching a monopoly). Thirdly, it is essential to optimize the utility of the small general clause by selectively identifying fundamental rights values pertinent to each type of conduct and actively incorporating them. To this end, it is advisable to clearly delineate detailed subcategories and review standards related to consumer harm under the Korean Competition Law, and to enhance these through future amendments to enforcement ordinances and review criteria. For instance, in cases involving personal information, prioritizing the right to Self-Determination of Personal Information and consumers’ freedom of choice as central elements in the assessment of illegality would establish a valuable precedent.