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한국경쟁법학회> 경쟁법연구

경쟁법연구 update

Journal of Korean Competition Law

  • : 한국경쟁법학회
  • : 사회과학분야  >  법학
  • : KCI등재
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  • : 연속간행물
  • : 반년간
  • : 1598-2335
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수록정보
수록범위 : 1권0호(1989)~40권0호(2019) |수록논문 수 : 461
경쟁법연구
40권0호(2019년 11월) 수록논문
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KCI등재

1가맹사업법상 계약의 존속에 대한 규제

저자 : 조혜신 ( Hye-shin Cho )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 40권 0호 발행 연도 : 2019 페이지 : pp. 3-30 (28 pages)

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The issue of contract termination and renewal is an important matter in determining the parties' interests in the continuity of the contract, and this becomes more important in the so-called 'distribution contracts'. Distribution contracts are not only one-time or short-term, but are retained on a recurring and long-term basis, in which the nature of these continuing contracts forces the parties to be bound here for a long period of time and rely on the trust of the parties to resolve the various problems arising from the contractual relationship. However, in a distribution contract, it is common to see situations in which asymmetry between parties is structured and solidified due to circumstances in which either party is in a dominant market position or controls accessibility to consumers. This is a situation in which autonomous determination, which is the basis for contract freedom, is infringed, and in this case, the law's intervention is required. Special distribution-related laws, such as the Franchise Act, the Large Retail Business Act, and the Agency Act, can be said to limit the freedom to decide whether a contract is retained or not through regulatory laws based on the principle of good faith.
The nature of such contracts in the distribution requires that the various issues arising from the contract relationship be treated differently than in the general contract. Much of it may be left to negotiation and agreement between the parties in a contract of equal standing, but in a major distribution contract in which the symmetry of the status is not guaranteed due to structural conditions, 'the objective legitimacy(das objectiv Richtige)' should be achieved through legislation.
At present, since the broadest range of regulations is in Franchise Act of Korea, we could take an approach to examine whether the rules on the termination and renewal of contracts can be extended to the Agency Act or the Large Retail Business Act. Of course, the key to this is to have a review based on an understanding of the nature of each transaction. Recently, there has been discussion on introducing regulations related to contract termination and renewal in other distribution-related laws, especially the Agency Act, and a proposed revision to the law has been prepared to reflect them. This is because it has been pointed out that unfair business practices related to the termination or renewal of contracts are taking place in agency transactions.
Meanwhile, the Fair Trade Commission's recently announced measures to prevent unfair practices in dealing with agency transactions said that it will set up at least three years of contract renewal requirements in standard agency contracts considering the proper duration of each transaction. While this is not yet set as a legal amendment, it may be possible to try legislative solutions in the future while looking at the improvement in reality. Of course, the provisions concerning contract termination and renewal under the Franchise Act can be a primary reference. However, it should not be missed that a gradual increase in the level of regulation in terms of 'best regulatory levels' would be desirable. In other words, it is necessary to step up to the legal level, starting from a low level, such as the introduction of standard contracts or the preparation of guidelines, with checking the effectiveness of regulations.

KCI등재

2가맹사업법상 규제의 대리점법 도입의 적절성 - 정보제공, 계약의 갱신·해지, 단체구성·교섭 측면을 중심으로 -

저자 : 정주미 ( Jumi Jung )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 40권 0호 발행 연도 : 2019 페이지 : pp. 31-55 (25 pages)

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The Fair Agency Transactions Act(FATA) was enacted to protect the fair trade in agency transactions. For the more effective enforcement of the FATA, there is a debate about whether FATA should introduce of regulations of the Fair Transactions in Franchise business Act(FTFA). The regulations are concerned with Information providing, renewal and termination of the contracts, and rights of organization and negotiation for business associations.
It is not appropriate to introduce the regulations of FTFA to the FATA. The first reason is the agency transactions means a variety of vertical forms of transactions, including the resale or consignment of goods or services. The second reason is that a supplier is not acknowledged as holding a superior position to an agency before the Korea Fair Trade commission(KFTC) judges it. Instead, it is suitable for the KFTC to make 'standard forms of contracts' in specific agency transactions to give guidelines for renewal and termination of contracts.

KCI등재

3유통 4.0 시대의 경쟁이슈

저자 : 최난설헌 ( Nansulhun Choi )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 40권 0호 발행 연도 : 2019 페이지 : pp. 56-83 (28 pages)

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Based on the 4th industrial revolution technology, the distribution environment is changing with the continuous growth of mobile shopping and online, and is entering into the “distribution 4.0 era.” On the basis of bold convergence, transformation, and new technology investments that transcend their businesses, distributors in the era of distribution 4.0 are transforming into platform operators. Based on the information of producers and consumers, these distributors (platform operators) endeavor to create values.
Due to the advent of the distribution 4.0 era, the distribution industry is expected to increase efficiency and greatly lower transaction costs. In the distribution industry, it is also likely that information asymmetry between manufacturers and customers will be significantly reduced. In the near future, more companies will be able to participate in the online business or incorporate new technologies into existing distribution businesses, which will accelerate the digitalization of the distribution industry.
On the other hand, the OECD held a roundtable meeting in June 2018 as the winner-take-all phenomenon was observed in the global distribution market, and conducted a 'Background review and basic discussion on the application of competition policy in the field of E-commerce'. In addition, the OECD published “the Implications of E-commerce for Competition Policy-Background Note”. This report examines the competitive landscape in the online market and addresses competition and distribution issues that can arise in rapidly expanding and highly innovative fields.
In Korea, as the characteristics of the distribution 4.0 era appear in the distribution market, there is a need for a new perspective change in terms of maintenance of relevant laws and regulations. In particular, serious discussions are underway on whether online transactions require the application of flexible elements that are different from conventional offline sales. Given the full understanding of the innovation distribution market, it is possible to formulate competition/distribution theory and improve consumer welfare in line with the new distribution market.

KCI등재

4디지털 인플루언서 마케팅과 전자상거래 소비자보호법 상 규율 - 경제적 대가를 표시하지 않은 기만광고 관련 규제를 중심으로 -

저자 : 최요섭 ( Yo Sop Choi )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 40권 0호 발행 연도 : 2019 페이지 : pp. 84-114 (31 pages)

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It is beyond doubt that the topics on practices of digital influencer marketing, especially of misleading contents, have brought numerous critical issues relating to consumer protection. In particular, the rapid development of ICT and online platform of social media has influenced the progress of e-commerce and its involving legal issues of comsumer protection acts around the world, and the case in Korea is not an exception. On the one hand, the recent development of e-commerce through digital influencer marketing or viral marketing has improved inter-brand competition and distribution in the relevant market because the advertising costs have been reduced when using viral marketing. The reduction of advertising costs enables small traders to enter the market. Moreover, consumers have more chances to receive sufficient information about goods and services that they are interested in. In summary, the emergence of viral marketing has enhanced efficiencies including consumer welfare improvement.
On the other hand, e-commerce through using digital influencer marketing has brought notable consumer protection problems, particularly when traders and endorsers do not disclose their economic relations. Influencers can frequently reach a large audience, and their posts are usually considered as trustworthy contents, which may mislead consumers about the economic characters of the posts. In other words, where there is no clarification of economic relations, consumers often believe that the posts of influencers are non-commercial contents, which may harm consumer interests. Therefore, a regulatory framework normally includes the prevention of unfair or misleading posts of digital influencers, thereby protecting consumers from non-disclosure of economic relations between endorsers and traders. However, the current legal provisions are not applied to influencers but only to traders for non-disclosure practices.
The purpose of this work is to discuss the existing problems of regulating non-disclosure of economic relations between endorsers and traders and to suggest proposals for amending the e-commerce law provisions, thereby to impose special responsibilities on digital influencers that can largely affect purchasing decisions of consumers. In particular, this article argues that the Korean e-commerce law should be applicable not only to traders but also to influencers for the violation of Article 21 of the law because an influencer often aims to share profits with social media platforms through being popular in SNS and to use his or her position to receive economic benefits from posting advertisements on the websites by contracting traders. To conclude, expansion of the regulatory scope to digital influencers can ensure consumer sovereignty in the digital era.

KCI등재

5계약자유와 공정거래

저자 : 권오승 ( Kwon Oh Seung )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 40권 0호 발행 연도 : 2019 페이지 : pp. 117-141 (25 pages)

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In Korea, legal order is based on private autonomy, and the private autonomy is realized through the freedom of contract. And economic order is based on the market economy. In order for the market economy to function well, free and fair competition should be maintained in the market. For the purpose, the Monopoly Regulation and Fair Trade Act prohibits the various restraints of competition and unfair trade practices. The freedom of contract is permitted within the limit of compulsory laws and public order. Since the violation of the law generally corresponds to the act against the core elements of public order, the judicial effect is invalid. However some of acts that violate the law may not be regarded against public order, and all of them will not be considered valid, but in case where the self-determination of economic inferior party is infringed, it would be reasonable to consider invalid, if the term of contract is judged unfair from the point of view of objective third party in accordance with the notion of fair contract. As a criterion, the voluntary provisions in civil law, the principle of good faith and the prohibition of abuse of rights may be used.

KCI등재

6미국 연방대법원의 American Express 판결이 양면 플랫폼에서의 관련시장 획정에 주는 함의

저자 : 강지원 ( Jiwon Kang ) , 조영은 ( Youngeun Jo )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 40권 0호 발행 연도 : 2019 페이지 : pp. 142-183 (42 pages)

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In Ohio v. American Express Co., The U.S. Supreme Court had its first opportunity to decide whether, in antitrust analysis, a relevant market involving a two-sided platform business model should be defined as one single market or two separate markets. The Court's majority held that defining a single market encompassing both sides of a platform is a proper market definition at least for a particular subcategory of platforms called “two-sided transaction platforms.”
A transaction platform, according to the Amex majority, supplies a service that facilitates a single simultaneous transaction between the two consumer groups on different sides of the platform-in this case, a credit-card transaction between a merchant and a cardholder. Because this single product is best understood as being jointly consumed by both sides' consumer groups, a credit-card market should be defined as a whole, the Court's majority opinion further explained.
While the Amex decision was welcomed by some commentators for setting an unique precedent for platform market definition, the decision left many important questions unanswered, unfortunately. Relying heavily on the economic theory still subject to the ongoing debates in academia, the Court failed to account for what the rationale for its classification of transaction/non-transaction platforms is, given that transaction platforms such as Uber can still compete with traditional non-platform taxi services.
The Court's “single-market approach” also did not respond to a normative question of whether harm to one group of customers, in evaluating anti-competitive effects, can be justifiably offset by net gains to another customer group on the other side of the platform, let alone a practical issue of how to assess such balancing of effects. These issues will soon be revisited and tackled by the KFTC faced with emerging regulatory challenges in tech industry, as the industry landscape has went through an upheaval ever since the KFTC's 10-year old precedent of the eBay/Gmarket merger case.

KCI등재

7통신사업자의 결합할인 판매와 시장지배력 전이 문제: 전기통신사업법과 독점규제법의 비교 분석

저자 : 주진열 ( Ju Jinyul )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 40권 0호 발행 연도 : 2019 페이지 : pp. 184-214 (31 pages)

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Bundling is a marketing strategy by which a firm offering several products separately, also gives a discount to those consumers purchasing the products as a single package. While bundled discounts are an ubiquitous phenomenon in Korean telecommunication market, the Korean Telecommunications Business Act (TBA) stipulates that a bundling of telecommunication firms can be prohibited for the reason of the transfer of dominant market power (DMP). However TBA defines neither DMP itself nor the transfer of DMP. In Korea, all of telecommunication firms have offered a bundled discount. But the treatment of bundled discounts under Korean antitrust law and TBA is highly unclear. This article addressed a problem of telecommunication firms' bundled discounts and the so-called monopolistic leveraging or transfer of DMP, arguing that bundled discounts should not be considered anticompetitive if it dose not amount to predatory pricing. If a bundling discount in question does not amount to predatory pricing, it should be regard as a legal conduct.

KCI등재

8기업결합 심사의 절차적 공정성과 사법심사-United Parcel Service 판결을 중심으로

저자 : 정재훈 ( Jae Hun Jeong )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 40권 0호 발행 연도 : 2019 페이지 : pp. 215-234 (20 pages)

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As merger cases are increasing recently, the competition authorities' review tends to be strengthened. Generally merger enforcement process is under the competition authority's exclusive control. For example, under the EU merger enforcement regime, it is not frequent for the court to revoke the Commission's decision on merger. In 2019, the Court of Justice sustained the general court's decision which revoked Commission's decision in UPS/TNT Express case on the ground that Commission did not inform its revised final econo-metric model to plaintiff and it constitutes the severe infringement of the rights of defense in terms of procedural fairness.
This ruling stressed the fairness value in the process of merger. According to the Court's ruling, the merger enforcement process is not different from the general administrative process in terms of the rights of defense and fairness standard. Specifically, the econometric model is pivotal in explaining the mechanism of anticompetiveness. Therefore, EU Commission should notify the interested parties of the econometric models and guarantee the opportunity to defend themselves. This legal principle could be applied in other procedural flaws.
This ruling is influential in merger review process. However, it took 6 years to revoke Commission's decision. As a result, this ruling did not contribute to the substantial protection of plaintiff's right. This delay of judicial review is also problematic in Korean merger review process. Under the current system, the way to expedite the judicial process and raise the professional specialty of courts is required to solve this delay. In the long term, the introduction of competition court system will contribute to the specialized and expedited judicial review process on merger.

KCI등재

9알고리즘을 이용한 담합의 규제

저자 : 이선희 ( Sun Hee Lee )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 40권 0호 발행 연도 : 2019 페이지 : pp. 235-259 (25 pages)

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The development of the digital economy has brought tremendous benefits to society such as the development of new goods and services, but the possibility of collusion increases due to high market transparency and increased frequency of transactions.
Algorithms are sometimes used as an aid to the implementation of harmonization under traditional competition laws, but they are also intentionally used in pricing that is very similar to parallel behaviors that are not regulated by current competition laws, but resulting in anti-competitive consequences such as collusion.
This paper looked at the need to redefine the concept of "agreement" while seeking ways in the framework of current law to regulate collusion by algorithms.
Despite the obvious risks that algorithms pose to competition, regulations on them are still highly complex and uncertain. Once the current competition law is attempted, it should be based on a direction that ensures explainability and enables post-audit for the sake of transparency and reliability of the algorithm.

KCI등재

10검색 중립성과 경쟁법 집행원리

저자 : 이상윤 ( Sangyun Lee ) , 이황 ( Hwang Lee )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 40권 0호 발행 연도 : 2019 페이지 : pp. 260-305 (46 pages)

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The concept of “search neutrality” is currently resonating in Korea as a guiding principle for competition law and/or digital platform regulation. The Korea Communications Commission adopted the so-called platform neutrality guidelines in 2017 and Korea's competition authority, the Korea Fair Trade Commission, is likely to bring a competition action against search engines and platforms on the potential allegation of 'non-neutral' practices.
Against this backdrop, the present paper questions the appropriateness of the concept of “search neutrality” as a guiding principle for Korea's competition law and/or government regulation. To answer to that question, this article explores theoretical literature concerning the meaning of 'search neutrality' and examines the experiences of the United States ('US') and the European Union ('EU') in which the neutrality concept emerged, and concerns with search bias have been discussed in terms of ex ante and/or ex post regulation. Through this, the appropriateness and feasibility of search neutrality as a competition and/or regulation principle is analysed and reviewed.
The research findings firstly show that the concept of search neutrality, in contrast to the analogous concept 'net neutrality', comprises a serious problem of definitional ambiguity and is based on the groundless premise that search services are indispensable or essential. Secondly, it is found that search neutrality has failed to guide competition policy and regulation in the US and the EU. Although the EU's new Platform Regulation (Reg.2019/1150) and the Commission's decision on Google's self-preferencing may, to some extent, be pertinent to the search bias concerns, the authors clarify distinctions between search neutrality advocacy and the EU's digital policy.
As a conclusion, this study argues that any regulatory restraint towards search engines based on neutrality would be permissible and feasible only if it sticks to the basic principles of competition law, id est, the protection of consumer welfare or that of effective competition structure.

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2미국의 비트코인 규제

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