간행물

한국경쟁법학회> 경쟁법연구

경쟁법연구 update

Journal of Korean Competition Law

  • : 한국경쟁법학회
  • : 사회과학분야  >  법학
  • : KCI등재
  • :
  • : 연속간행물
  • : 반년간
  • : 1598-2335
  • :
  • :

수록정보
수록범위 : 1권0호(1989)~39권0호(2019) |수록논문 수 : 449
경쟁법연구
39권0호(2019년 05월) 수록논문
최근 권호 논문
| | | |

KCI등재

1경쟁법 위반행위에 대한 손해배상 제도

저자 : 서정 ( Seo Jeong )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 39권 0호 발행 연도 : 2019 페이지 : pp. 3-32 (30 pages)

다운로드

(기관인증 필요)

초록보기

In Korea, the compensation system for violation of the competition law is still insufficient in terms of recovery of damage and prevention of violation. By comparison, the United States has established an ecosystem that enables active private enforcement through various factors such as law and institution, culture, and social system, and as a result the private enforcement of competition law has developed to the level of replacing public enforcement to a certain degree. On the other hand, in most countries where such ecosystems are not established, it is difficult for private enforcement of competition laws to exert their own deterrence in lieu of public enforcement. Therefore, the task at hand in these countries is to supplement the system so that private enforcement can serve the original function of damage relief. In the case of the EU, it aims at the task of the victims to be fully compensated by the follow-up litigation in the case of the violation of the competition law that was publicly enforced.
In Korea, a threefold compensation system for some violations of competition law including unfair collaborative acts(cartels), has recently been introduced. Nevertheless, due to various institutional limitations on damage relief, the structural under-compensation and under-prevention are unlikely to escape. In particular, the following institutional consideration should be given in order to realize the right of victims to receive full compensation: ① collective compensation system, ② easy access to evidence, ③ reduction of burden of proof for damages, and ④ clear and sufficient prescription system.
On the other hand, the threefold compensation system and the penalty surcharge system are also causing concern about over-banning due to similarity of purpose. In order to address this problem, it is necessary to consider a method of refunding the surcharges paid by the enterpriser when compensation for damages has already been paid and deducting the surcharges when a damages claim has been filed and the damages amount has been fixed.

KCI등재

2공정거래법의 사적집행제도로서의 사인의 금지청구제도

저자 : 홍대식 ( Hong Dae Sik )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 39권 0호 발행 연도 : 2019 페이지 : pp. 33-65 (33 pages)

다운로드

(기관인증 필요)

초록보기

The government's entire amendment (hereinafter 'amendment') to the Monopoly Regulation and Fair Trade Act (hereinafter 'Fair Trade Act') submitted to the National Assembly on November 11, 2018 contains the introduction of the injunctive relief system. If the relevant content of the amendment is enacted as legislation, the Fair Trade Act will be equipped with the injunctive relief system in addition to damages compensation system and the triple compensation system, thus completing the framework of private enforcement systems.
Against this background, this paper first examines whether the injunctive relief system is permitted by general principles of the civil law and, if so, on what requirements based on theories and case law doctrines of the civil law and judicial precedents in cases of preliminary or final injunction claims for violation of Fair Trade Act (Ⅱ). After developing the interpretation theory of the injunctive relief system introduced in the amendment in the order of the subject of the claim, the other party, the object act, the constitution requirements, the nature, the content and the general procedure (Ⅲ), the conclusion will be drawn (Ⅳ).
The injunctive relief system is a system that allows a person who injured or has a risk of being injured by unfair trade practices to file a injunction claim against an enterprise or a enterprise association that commit or are likely to commit a violation. The content of the injunction claim is the prohibition or prevention of infringements against oneself. The scope of prohibition or prevention is set to the extent necessary for the victim's relief. Prevention claims as well as prohibition claims are recognized. Therefore, if this system is introduced, it will be able to file injunction claims not only in the cases of continuing infringements that have already occurred, but also in the cases when infringements have been terminated but are likely to occur again or infringements do not occur yet but are likely to occur.
The injunction claims are most likely to be filed when the Korea Fair Trade Commission's corrective actions are not expected to be appropriate or there is no room to wait for it, unlike claims for damages. Therefore, in the case of unfair trade practices, stand-alone actions, which are relatively rare compared to follow-on actions, can be an opportunity to be activated. In this respect, the introduction of the injunctive relief system for unfair trade practices is also meaningful in terms of effective allocation of enforcement resources.

KCI등재

3경쟁법위반행위에 대한 집단소송제 연구

저자 : 김두진 ( Doo Jin Kim )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 39권 0호 발행 연도 : 2019 페이지 : pp. 66-100 (35 pages)

다운로드

(기관인증 필요)

초록보기

There is a problem of consumer-mass-harm situations where consumers or victims with very small amounts of damages lack the legal options and economic incentives to claim the damages suffered under the current legal system. Representative collective actions serve the purpose of aggregating common claims to share litigations costs, creating thus economies of scale for plaintiffs and for courts, providing victims of antitrust infringements wider access to the Justice. This article analyses the legal practice of the class actions of antitrust law in the United States and the recent approach of EU and the member states trying to introduce collective action system under their legal culture and tradition.
If we introduce collective action system in the field of competition law, we could roughly choose between the U.S. style class action system and the EU type consumer representative action (Verbandsklage) system, such as those in France or the United Kingdom.
From the view point of efficient private enforcement of competition law, the U.S. system prefer deterrence effect and the EU system seeks to ensure that anyone who has suffered harm from a violation of competition law can effectively exercise their right to claim full compensation. Therefore, we first of all should decide which object we put on a priority in competition policy. In my opinion, we should weigh more on deterrence effect of the private enforcement of the competition law. Then we should tune up to complement its weak points. We already have the Securities-Related Class Action Act since May 28, 2013. We should rename the act as General Class Action Act and may expand its scope allowing relief for collective losses arising from antitrust infringements such as cartels, price abuses of market-dominance or resale-price-maintenance. And the act must provide that the immediate appeal against the ruling of permission for lawsuit shall not take any effect to suspend the execution for avoiding delay.
Individual consumer who suffered respectively little loss in a mass tort case doesn't have sufficient incentive to sue the offender enterpriser because the victim could get only little award if she or he would win the litigation after consuming lots of time and money. So an opt-out system in which the number of claimants are larger and consequently each claimant bears less risk and can save more on the litigation costs is suggested, granting wide range of subjective extent of Res Judicata. And it is necessary for the plaintiffs of a class action to appoint lawyers as their attorney, for mitigating complexity of the action and reducing the court's burden. Article 56 of the Monopoly Regulation and Fair Trade Act should apply mutatis mutandis to the defendant's verification in collective actions. And because most collective action will be follow-on action, the court should be allowed to request the Fair Trade Commission to transmit the records of the case concerned under the act. At the same time, strong safeguards such as procedures for class admission, lawsuit permission and applying the Loser pays rule are necessary under the act in order to avoid unmeritorious litigation.

KCI등재

4공정거래 관련 분쟁조정제도의 현황 및 활성화 방안 검토

저자 : 김건식 ( Gun Sic Kim )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 39권 0호 발행 연도 : 2019 페이지 : pp. 101-127 (27 pages)

다운로드

(기관인증 필요)

초록보기

The fair trade dispute mediation system has been implemented in 2008 for the purpose of processing efficiency of the Fair Trade Commission and for reviving substantial damage relief. In the Korean judicial procedure for damage relief, it is difficult for small and medium-sized businesses to receive remedies through litigation because it costs a lot of time and expenses. However, the mediation system enables faster and easier remedial action without costs.
At the time of introducing the mediation system in 2008, 520 cases of disputes were filed in two fields of fair trade and franchise business. In 2018, 3480 disputes in 6 areas of fair trade, franchise business, subcontract, large franchise and retail business, terms and conditions, agency transactions were filed, and the fair trade dispute mediation system has been successfully established.
Therefore, I would like to examine whether the fair trade related mediation system is operating well according to the purpose of the introduction and the issues raised recently. In addition, 10 years after the introduction of the fair trade related mediation system, I am going to examine the recent changes in the “Monopoly Regulation and Fair Trade Act” and recent amendments to the mediation system.
This article examines ways to expand the scope of mediation providers and mediation objects for the revitalization of actual damages. Because, in many cases, businesses that have been damaged by unfair trade practices can not receive relief through mediation system. The fair trade mediation system may have various advantages such as social cost reduction due to the dispute, so it is necessary to actively review measures to expand the scope of mediation system related to fair trade.

KCI등재

5수직적으로 통합된 시장에서의 방해남용규제에 관한 소고 - 방해남용으로서 이윤압착의 유형적 독자성(Eigenständigkeit)을 중심으로 -

저자 : 유영국 ( You Young Gug )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 39권 0호 발행 연도 : 2019 페이지 : pp. 131-158 (28 pages)

다운로드

(기관인증 필요)

초록보기

In diesem Aufsatz handelt es sich um Substantialität einer vertikalen Inegration zwischen Unternehmen und der Kosten-Preis-Schere (KPS) als ein eigenständiger Behinderungsmissbrauch.
Sowohl bei der Ermittlung einer marktbeherrschenden Stellung als auch bei der Entstehung einer Missbrauchsform kann eine bestimmte Marktstruktur im Vordergrund stehen. Fur die Marktteilnehmer ist jede Marktstruktur eine vorgegebene Wettbewerbsbedingung des Wirtschaftslebens. Es ist dabei hinsichtlich der Marktstruktur wunschenswert, die fur den normalen Wettbewerb funktionierende Struktur ungekunstelt zu erhalten. Diese strukturelle Erhaltung der wirtschaftlichen Freiheit ist auch fur die Verbraucherwohlfahrt vorteilhaft. Gegebenenfalls sehen sich die Unternehmen allerdings der von dem marktbeherrschenden Unternehmen herbeigefuhrten Marktstruktur gegenubergestellt. In diesem Fall muss sogar ihre Ausgangslage im Wettbewerb (ein sog. wettbewerblicher Vorsprung aufgrund der Marktstruktur) voneinander abweichen. Bei der vertikalen Integration besitzt das auf dem vorgelagerten Markt vorhandene Unternehmen die sog. Doppelstellungein Handelspartner und gleichzeitig ein Wettbewerber-aus eigenem Antrieb. Dies gilt als ein Merkmal vertikal integrierter Unternehmen. Unter diesen Umständen ist zu befurchten, dass das marktbeherrschende Unternehmen auf dem vorgelagerten Markt durch die Auferlegung von diskriminierenden Handelsbedingungen oder durch die Verstärkung von unuberwindbaren Abhängigkeiten die Wettbewerbssituation kontrollieren kann. Damit muss die den relativen Wechsel der Marktpositionen begleitende vertikale Integration eine strukturelle Variable sein, die den normalen Wettbewerb beschränken kann.
Die KPS lässt sich als Strategie verstehen, die dazu dient, die kostenbezogenen Vorteile eines marktbeherrschenden Unternehmens auf die gewinnbezogenen Nachteile der mittelbaren Wettbewerber auf dem nachgelagerten Markt ubertragen. Hier spielt die vertikal integrierte Struktur eines marktbeherrschenden Unternehmens eine Rolle als Erfolgschlussel.
Ungeachtet des obigen grundsätzlichen Verständnisses kann man beim Bilden einer Legaldefinition Zweifel daran haben, ob es möglich ist, die KPS als einen selbstständigen Missbrauch aus wettbewerbsrechtlicher Sicht zu begreifen, da sich die verwandten wettbewerbsbeschränkenden Merkmale des unzulässigen Marktverhaltens daraus ableiten. Daher lassen sich die zwei methodischen Aufgaben zur Begriffskonstruktion auf folgender Grundlage ableiten: i) von den der KPS immanenten Merkmalen, ii) in Abgrenzung zu anderen Behinderungsmissbrauchsformen, die daruber hinaus mit der sog. Preis-Kosten-Analyse zusammenhängen.

KCI등재

6디지털 플랫폼 사업자의 빅데이터와 관련한 시장지배력 및 프라이버시 문제에 대한 고찰

저자 : 주진열 ( Ju Jinyul )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 39권 0호 발행 연도 : 2019 페이지 : pp. 159-202 (44 pages)

다운로드

(기관인증 필요)

초록보기

There is little doubt that the proper use of “big data” in any industries can promote innovation and economic efficiency. But some argues that Google, Facebook, or Amazon may abuse their market power delivered from their own big data. This article addressed some issues concerning big data, market power, and privacy in multi-sided digital platforms. First of all, big data owned by digital platforms are not a selling product. It implies that neither antitrust relevant markets nor market power on big data can exist. It is true that big data is a valuable asset to run digital platforms. However any firms may use big data by collecting and processing non-rivalrous user information. For this reason, big data itself can be neither barriers to entry nor essential facilities in the antitrust sense. Indeed there are no evidence showing that big data actually hinder market entry. In regard to privacy, the protection of it is not the proper goal of competition law. It is better to solve privacy issues with privacy law rather than competition law.

KCI등재

7구글 안드로이드 앱 선탑재 행위에 관한 경쟁법적 고찰

저자 : 이민희 ( Min Hee Lee ) , 박상진 ( Sang Jin Park )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 39권 0호 발행 연도 : 2019 페이지 : pp. 203-237 (35 pages)

다운로드

(기관인증 필요)

초록보기

In light of the KFTC's recent announcement that it will look to investigate the actions of Google, this article explores the recent decision of the European Commission (the “EC”) regarding Google's business practices regarding Android mobile devices. The EC held that Google, a dominant undertaking in markets for general internet search services, with its licensable smart mobile OS and app stores for the Android OS, abused its market position to strengthen dominance of its position in general internet search. Of the three business practices of Google that were reviewed in the EC case, this article focuses on the first two practices which may have a significant impact on the Korean market as well: i) Google's demand for the pre-installation of its search app along with its browser app as a condition to receiving its app store licence; and ii) its provision of incentives to mobile device manufacturers and mobile network operators on the condition that they exclusively pre-install its search app.
For the tying of Google's search and browser apps, the KFTC may refer to In the Matter of Microsoft (Decision No. 2006-042, Feb 24th, 2006), in which it sanctioned Microsoft for tying Windows Media Service with Windows Server OS, and for tying Windows Media Player and Windows Messenger with Windows PC OS. However, although Microsoft's bundling looks similar to the Google's at a first glance, the fact that in the case of Microsoft, it was much easier for consumers to replace the pre-installed app with another app may lead the KFTC to come to a different conclusion.
Regarding the issue of Google's provision of incentives to device manufacturers and network operators, it is worth looking at In the Matter of Intel (Decision No. 2008-295, Nov 5th, 2008) and In the Matter of Qualcomm (Decision No. 2009- 281, Dec 30th, 2009). As professor Pinar Akman points out, the differing degrees of exclusivity conditioned on the pre-installation of a software and the installation of a hardware chip should be considered. In addition, whether the provision of incentives restricts competition will depend on the specific details and size of such incentives-the value payable by the device manufacturers or network operators to Google in the absence of such incentives, the price offered or offerable by other competing search app businesses will also be key considerations. Even if the incentives provided by Google in exchange for exclusive pre-installation are sizeable, if such incentives are unaffecting when compared to the overall price payable to Google by the device manufacturers and network operators, then the provision of such incentives is unlikely to be seen as limiting competition. Finally, this article also notes that the relationship between abuse of marketdominating position and unfair trade practices should be reconsidered, at least for the types of unfair trade practices that are focused on restriction on competition, such as tying and loyalty rebates. Along with the EC's decision, the KFTC's decision in this area is expected to have a tremendous impact not only on the mobile industry, but also on global competition law.

KCI등재

8디지털경제와 기업결합 신고의무의 개선방안

저자 : 이봉의 ( Bong-eui Lee )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 39권 0호 발행 연도 : 2019 페이지 : pp. 238-265 (28 pages)

다운로드

(기관인증 필요)

초록보기

Under the digital economy, the obligation to notify M&As based on total turnover volume, which is a measure of past performance of contracting parties, can lead to regulatory flaws related to business combinations that take over start-ups or pharmaceuticals ventures. The proposed revision of the Korea Anti- Monopoly and Fair Trade Act(hereafter “the Act”) drafted by the Fair Trade Commission (FTC), which further adopts the transaction value threshold, is considered desirable in terms of enhancing the effective enforcement of the merger control of Korea. In order to meet the global standard, it is also necessary to delete the existing total assets threshold and the domestic turn-over threshold for foreign M&As.
The specific amount of transaction value will be decided in consideration of amending the enforcement decree of the Act. Two things are to be mentioned; ① the amount can be calculated comparing foreign legislative cases or size of national economy, ② appropriate number of mergers to notify should be considered in order to prevent overload of the KFTC. For this purpose, current 300 billion (won) standard needs to be raised.
As for international M&As, it is also necessary to adopt the criteria “considerable domestic activities” along with aforementioned the transaction value threshold. The qualitative criteria such as Germany (the significance of the domestic activities) seems to reduce foreseeability and legal certainty, therefore it is necessary to actively seek quantitative criteria. The problem still remains that the new threshold of transaction value will be applied to all the business combinations that is completely independent of the digital economy or platform economy. In this context, the revision of the enforcement decree should be revised in order to raise the total amount of assets or sales amount to a substantial degree.
In case of mergers-especially in the case of international ones-it would be desirable that the KFTC will not investigate mergers without filing obligation. The legal stability will be undermined if they are subject to investigation at any time. As for the “domestic turnover” threshold applied to international M&A should be erased, when the transaction value threshold as amendment is introduced.

KCI등재

9경쟁법상 부당한 공동행위의 형사처벌에 따르는 법리적 쟁점

저자 : 조혜신 ( Hye-shin Cho )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 39권 0호 발행 연도 : 2019 페이지 : pp. 266-299 (34 pages)

다운로드

(기관인증 필요)

초록보기

Criminal punishment for cartels began with Article 1 of the U.S. Sherman Act, which has set a strong antipathy against cartels and monopolies at the time of the enactment of the Act. Against this backdrop, the so-called 'conspiracy-centered approach' was adopted. Specifically this approach could be explained as as 'agreement'-oriented components that do not take into account their implementation or the consequences of implementation, a prohibition that is not exceptionally permissible, and strong criminal sanctions that include jail terms for individuals involved. On the other hand, the circumstances behind creating competition laws for the EU community and its members are clearly distinct from those of the United States. That is, in the background of the lack of experience in moral criticism of cartels, the EU Community and Member States Competition Law has adopted an administrative-regulatory approach, which has centered around specialized regulators, to determine whether an agreement is prohibited by combining “effects or consequences” with the agreement itself. Fines, administrative sanctions, have played a major role in enforcement.
However, the introduction or reinforcement of criminal sanctions to enhance the effectiveness of cartels' regulations is being noticeable due to the strengthening of awareness of problems with international cartels in the 1990s and the global spread of the leniency program that began successfully operating in the U.S. Currently, 12 countries among EU member states enforce criminal sanctions against cartels, while others, Canada, Australia, Brazil, Israel, Mexico and South Korea, do so. Many of these countries have adopted or strengthened them through legal revisions since the 2000s, showing a distinct tendency toward so-called “criminalization.” And in Korea, this trend is felt in the discussion surrounding the abolition of the “exclusive accusation system”.
In the case of Korea, the exclusive accusation system could be said to have been an institutional mechanism that allowed criminal sanctions to exist in a coherent manner within the framework of administrative regulation, and thus mitigated legal and procedural problems that followed criminal sanctions to some extent. In other words, an independent regulator with expertise in the Fair Trade Act has been, to some extent, restraining the problems arising from the presence of both administrative and criminal enforcement by leaving the right to decide whether or not to initiate criminal enforcement. In particular, criminal punishment of the individual involved had been supported in the light of strengthening the deterrent effect without due consideration of its legal implications, and it is thought that critical review of it from the criminal law, particularly the question of ambiguity of the subject and the substance of legality, could never be omitted. It can be expected that the recently discussed abolition of the exclusive accusation system will bring about significant changes to the existing cartel's enforcement system, that, among other things, the criminal procedure of administrative procedures cannot rule out the possibility of fundamentally changing the relationship between regulators and undertakings under competitive law, and that the benefits of enhancing the deterrent effect may not be significant due to the increase in regulatory costs associated with criminal procedures.

KCI등재

10입찰담합 유형별 과징금 산정방식의 제문제 - 공정거래법 시행령 제9조 제1항 단서의 해석론 및 관련매출액 중복 산입 쟁점을 중심으로 -

저자 : 전승재 ( Seung Jae Jeon ) , 백광현 ( Kwang Hyun Back )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 39권 0호 발행 연도 : 2019 페이지 : pp. 300-332 (33 pages)

다운로드

(기관인증 필요)

초록보기

This paper categorizes the types of bid collusion into three categories. First, in the so-called 'one-time bid-rigging', the contract amount of the bidding is added to the related sales to impose certain sanctions on the complementary bid (Type 1). Such complementary bidder may not have had direct benefits in the bid, but may have had an invisible indirect benefit. For depriving it, as a proxy variable, the contract amount of the bidding is included in the related sales of the complementary bidder. The underlying rule is Article 9 (1) of the Enforcement Decree of the Fair Trade Act, which is an exception to the principle that only the sales that are acquired by the self in the cartel.
Second, it is a type that cooperate(complementary bid) with the successful bidders in order to distribute the bids divided into several (Type 2). The FTC has tended to calculate only contract amount of the bidding that was won, but the contract amount of complementary bids are included in the related sales from the cartel case of Honam High Speed Rail which was processed in 2014. However, the FTC revised the regulations so that the total amount of related sales for complementary bid is calculated up to twice the contract amount.
Third, it is the type in which cartel is made on bidding to select 'multiple winners' (Type 3). For this type, the FTC has calculated only the amount of money that each party has won as related sales. However, there has been a case in which the sum of the contract amount of all the successful bidder is included in the related sales of each individual from the case treated in 2018. If this is going to be used in the future, for example, in the case of a bid of 10 winning bidder, related sales can be doubled to 10 times. In this paper, we review the interpretation theory of the bid-rigging regulation in relation to the issue of

12
권호별 보기
가장 많이 인용된 논문

(자료제공: 네이버학술정보)

가장 많이 인용된 논문
| | | |
1연안해역에서 석유오염물질의 세균학적 분해에 관한 연구

(2006)홍길동 외 1명심리학41회 피인용

다운로드

2미국의 비트코인 규제

(2006)홍길동심리학41회 피인용

다운로드

가장 많이 참고한 논문

(자료제공: 네이버학술정보)

가장 많이 참고한 논문

다운로드

2미국의 비트코인 규제

(2006)홍길동41회 피인용

다운로드

해당 간행물 관심 구독기관

공정거래위원회 서울대학교 고려대학교 이화여자대학교 연세대학교
 734
 65
 49
 29
 25
  • 1 공정거래위원회 (734건)
  • 2 서울대학교 (65건)
  • 3 고려대학교 (49건)
  • 4 이화여자대학교 (29건)
  • 5 연세대학교 (25건)
  • 6 Yanbian University (25건)
  • 7 경기도행정도서관 (22건)
  • 8 한국행정연구원 (18건)
  • 9 한국공정거래조정원 (16건)
  • 10 대검찰청 (15건)

내가 찾은 최근 검색어

최근 열람 자료

맞춤 논문

보관함

내 보관함
공유한 보관함

1:1문의

닫기