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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)~42권0호(2020) |수록논문 수 : 485
경쟁법연구
42권0호(2020년 11월) 수록논문
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KCI등재

1플랫폼의 시장획정과 시장지배력에 관한 쟁점

저자 : 서정 ( Jeong Seo )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 42권 0호 발행 연도 : 2020 페이지 : pp. 3-32 (30 pages)

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As the scale of platform business grows, there is a movement to regulate the scale itself or to strengthen ex ante regulation. Whenever monopoly companies such as Microsoft and Wal-Mart appeared, there was discussion about strengthening similar regulations, but it was possible to respond appropriately to the problem by improving and developing the competition law framework. Many issues arise in competition law area, as the advancement of online platform operators has been remarkable. Regarding market definition, one distinction may be drawn between a transaction (or matching) platform and a non-transaction (or audience providing/advertising) platform. However, there seems to be no inevitable reason to set different standards for market definition only for platforms. In the case of defining the market for the platform according to the traditional approach, there is a tendency to underestimate network effects. Therefore, prior to regulation of platform business, it is necessary to conduct a sufficient investigation and understanding of the market and the business model of the platform as an intermediary.
In addition, for online platform business that grow based on a multi-sided market, the existing market definition methods such as SSNIP test have shown their limits. In addition to market share, various qualitative factors, such as new entry or competitive pressure, should be fully considered in the evaluation of market power. Currently, concerns about both over-enforcement and under-enforcement on platforms are raised in the field of competition law. Considering that the platform, new forms of innovation, can provide a lot of utility to consumers and society as a whole, the competition authorities prioritize the law enforcement by focusing on the market where monopoly is fixed rather than the rapidly changing market.

KCI등재

2공정거래법상 온라인 유통플랫폼 사업자의 착취남용행위에 대한 금지의 필요성

저자 : 정주미 ( Jung Jumi )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 42권 0호 발행 연도 : 2020 페이지 : pp. 33-56 (24 pages)

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The Online distribution platform operates in a double-sided or multi-sided market, and mediate between companies and consumers who use the service for free or low price. As the platform becomes a dominant company, it raises the fees from companies to recover its loss or demands unfair trading conditions.
As online distribution platforms have several types of businesses, the competitors are different for each side of platform. It is not appropriate to define the platform as a single market. Based on the type of transaction, it can be divided into open market, portal site, food delivery app service and direct purchasing.
It is necessary to prohibit an exploitative abuse of dominant online distribution platform under the Korean competition law. The open market is not subject to the Act on fair transactions in large franchise and retail business. Besides, it is not enough to prohibit the exploitative behavior of dominant online distribution platform as an unfair practice. So the Korean competition law should be amended.

KCI등재

3디지털경제에서의 기업결합과 동의의결제도 활성화방안

저자 : 이민호 ( Lee Min-ho )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 42권 0호 발행 연도 : 2020 페이지 : pp. 57-84 (28 pages)

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When the consent order system was first introduced into Korea's antitrust enforcement regime in 2011, it was generally expected that consent orders would soon play a significant role in the merger control practice of the Korea Fair Trade Commission (“KFTC”). Since then, however, there has only been one merger case to date that has utilized the consent order process, indicating that the current system is ill-equipped to expedite the KFTC's merger review process and provide greater efficiency. Therefore, in order to promote the use of consent orders in merger cases, it will be necessary to modify the system and mode of operation so that it may, as originally intended, facilitate swifter resolution of potentially anti-competitive mergers, which will be particularly relevant in the dynamic digital economy.
This paper explores various ways to promote the use of consent orders for merger cases in Korea, particularly in the digital economy, and proposes recommendations on how to amend the current consent order system for that purpose. First, as the current system is designed for all types of antitrust issues, including those concerning violations that occurred in the past (e.g., collusion, abuse of market dominance), the system should be amended so that there is a separate set of rules for merger cases, which concern potential anti-competitive effects that may occur in the future as a result of the proposed transactions. Second, the system should better ensure expediency and efficiency by requiring the entire consent order process for mergers to be completed in about three months. Even if any of the intermediary steps requires an extension, such extension should be permitted within a short period of time. Third, it should take less time to gather feedback from interested parties, while the KFTC should reach out to the parties' major competitors, suppliers or customers to ensure that they have sufficient opportunity to express their opinions on the case, thereby ensuring procedural efficiency and fairness. Meanwhile, because merger cases (unlike certain other antitrust matters) do not warrant criminal sanctions, the KFTC should be exempt from the requirement to consult with the Prosecutor General before approving the consent order for merger cases. Finally, in order to enhance the foreseeability of the merging parties, it seems necessary to simplify the requirements for approving consent orders to “when the proposed remedies are designed to effectively resolve the anti-competitive concerns raised by the proposed merger.”

KCI등재

4공정거래법상 독행기업의 법리에 관한 연구 - SKT와 CJ헬로비전 및 LGU+와 CJ헬로 간 기업결합을 중심으로 -

저자 : 이호영 ( Ho Young Lee )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 42권 0호 발행 연도 : 2020 페이지 : pp. 87-119 (33 pages)

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Competition authorities move away from the practice that mainly depend upon market structure indicators such as the sum of the company's market share or its increase in reviewing mergers, and instead, tend to examine their anti-competitiveness by also analyzing various factors related to the competition situation in relevant markets other than market structure indicators. Hence, the theory of maverick firm is expected to play an important role in reviewing horizontal mergers in the future.
The theory of maverick firm is used as a basis for competition authorities to hold mergers anti-competitive even if significant increase in the market concentration is not caused by the mergers. However, discussions on this theory have been scarce internationally and moreover, in Korea, discussions have not been made both theoretically or practically until filing of mergers to acquire CJ Hello in 2015 and 2019. Due to its nature, the application of the theory may inevitably create risk of impairing the objectivity and predictability of the judgment of anti-competitiveness of horizontal mergers.
In order to secure objectivity and appropriateness of merger reviews applying the theory of maverick firm, the Guidelines for Combination of Enterprises Review should be amended to provide for the concept of maverick firm and the criteria for identifying maverick firms, theories of anti-competitive harms based on this theory. In addition, the Korea Fair Trade Commission should also comprehensively analyzes in reviewing mergers whether there is a business entity playing a role of maverick firm among other competitors in the relevant markets as well as the merging parties. Moreover, it is necessary to analyze in detail what changes will be caused by the merger to the ability and incentives for the maverick firm to compete and whether third-party competitors, who were previously unable to act as maverick, will have the ability and incentives to perform the role of maverick through the merger.

KCI등재

5국내 경쟁법 절차에 비밀유지권 도입 검토 - 일본의 제도를 중심으로 -

저자 : 김효성 ( Kim Hyosung )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 42권 0호 발행 연도 : 2020 페이지 : pp. 120-146 (27 pages)

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This article mainly focused on explaining the details of the Legal Professional Privilege(“LPP”), which is recently introduced in the competition law procedure of Japan, and looking at the implications that should be considered when the LPP is introduced in South Korea.
The new LPP system in Japan has a similar form to the EU competition law with respect to its content and procedures. Although the scope of the LPP is limited to cases related to cartels, the introduction of the LPP is important since Japan was one of the few countries where the LPP was not recognized.
The Supreme Court of South Korea explicitly denied the LPP in 2012, but there is ample need for the exchange of legal communication between an attorney and client to be recognized as a secret as part of the right to defend in the competition law procedure in Korea. After the introduction of LPP in Japan, South Korea become the only OECD member country that denies the LPP in competition law. Thus, it is necessary to recognize the LPP in the competition law enforcement system as soon as possible. Regarding the specifics of the LPP, the discussion could be based on the content of the LPP system in the EU and Japan.

KCI등재

6조선업에서의 부당한 하도급대금결정행위 - 하도급법 제4조 제2항 제5호를 중심으로 -

저자 : 조혜신 ( Hye-shin Cho ) , 임수영 ( Su-young Lim )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 42권 0호 발행 연도 : 2020 페이지 : pp. 147-185 (39 pages)

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In the shipbuilding industry, one of Korea's main industries, subcontracting is extensively prevalent, especially compared to other industries, and the process and structure of the payment decision are unique. In other words, the subcontract price in the shipbuilding industry is calculated based on the “time value” rather than “quantity” and various valuation factors are posted here, making it a likely point for disputes between the parties to the subcontracting transaction.
What we particularly want to note in this article is the evaluative nature of price in subcontract. Determining the price between parties is essentially a matter of profit allocation arising from the transaction, and, moreover, if there are many circumstances in which the equality of the status between the parties is not guaranteed, it is necessary to determine from an objective perspective whether the price decision was made on the basis of a fair share of profits, which is exactly what the Subcontracting Act would require.
In the case of Article 4(2)5, in particular, the requirement of 'unilateral' will have important implications for indirectly proving the unfairness of the price level, which is based on the assumption that if one of the parties is in a fairly superior position in the transaction, the other party may not be able to enjoy the independence and autonomy of decision-making in the course of negotiations for the payment, and that it is difficult to conclude that there is a genuine agreement. Therefore, it would be possible to assess the unfairness of pricing by determining the unilaterality of the process and the low level of unit price based on a comprehensive understanding of the structure of the transaction in which the pricing has been made.
In this regard, Article 4(2)5 of the Act is important in that it facilitates the determination of whether price decisions have been made unfairly between the parties in subcontract whose status is not asymmetrical in such industries as shipbuilding, where it is difficult to find a standard for price comparison. If so, the importance of the various circumstances supporting the unilaterality of the payment decision in the application of Article 4(2)5 needs to be sufficiently emphasized, with the relative importance of the judgment on the relatively 'low unit price' being somewhat reduced.
However, it is regrettable that the court rulings on cases involving unfair subcontracting decisions in the shipbuilding industry reviewed in this paper did not deal with the issue heavily, but rather highlighted issues such as whether the time value was “unit price” or “low unit price.” If the legislative purpose of the Subcontracting Act and the intent of Article 4 are more actively engraved, a practical insight into whether the allocation of profits between the parties to the Subcontracting Act is a fair price decision based on the specific productive and transactional characteristics of the industry, rather than on the question of literary inclusion or interpretation of each component.

KCI등재

7미국 연방대법원의 American Express 판결의 문제점 검토

저자 : 배진철 ( Jinchul Bae )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 42권 0호 발행 연도 : 2020 페이지 : pp. 186-215 (30 pages)

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This article is about the fallacy the U.S. Supreme Court has made in it's decision on Amex Express case.
The decision was based on the theory that credit-card payment services market is a typical two-sided market. However, the credit-card payment service market is different from general two-sided market in many ways; It is not a typical transaction two-sided plaform Filistulicchi named. The decision put emphasis on the fact that the credit-card network has characteristics of two-sided market, which is indirect network effects. But a two-sided market can be analysed by the modern economic theory without any modification. Second, credit-card payment services market should be defined as a single market which a single kind of service is provided. The Court held that two kinds of services are provided in the credit-card payment services market, but, the two services should be understood as one because the services are provided by one provider and are simultaneously consumed jointly two consumers. Dissidents criticized those reasoning because the services for cardholders and the sercices for merchants can not be considered substitutes in consumption. Third, The Court did not anlyze why credit-card networks may force merchants to accept the agreement in which anti-steering clause is included. Fourth, anti-steering clause obstructs cardholders from aquiring information on cheeper alternatives, which has weekened price competition among credit-card networks. It is therefore not necessary for plaintiffs to prove that Amex's anti-steering clause increased networks' services costs above competition level nor that the output was restricted. But the Court required plaintiffs to prove it. Fifth, the Court did not infer competition injury from the anti-steering clause because the output of credit-card transactions grew dramatically from 2008 to 2013. But this evidence does not guarantee it has no anticompetitive effects. Sixth, It is a contradiction to reason that Amex's high merchant fee increased competition among credit-card networks while also arguing that competitors decreased merchant fee to compete with other networks.
In conlusion, the Court paid too much attention to the Amex's jutification in profit maximizing strategy and too little attention to the anti-steering clause which results in anti-competitive effects.

KCI등재

8독일 경쟁제한방지법 제10차 개정(안)의 주요 내용과 독점규제법상 시사점

저자 : 유영국 ( You Young Gug )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 42권 0호 발행 연도 : 2020 페이지 : pp. 216-256 (41 pages)

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In diesem Aufsatz handelt es sich um die 10. GWB-Novelle, die ein fokussiertes, proaktives und digitales Wettbewerbsrecht 4.0 (sog. “GWB-Digitalisierungsgesetz”) bezweckt. Daher ist anzumerken, dass diese Änderung des GWB zwei Jahre nach der 9. GWB-Novelle im Jahr 2017 durchgeführt wird. Das geänderte Gesetz soll das Ziel der Bundesregierung umsetzen, im Wesentlichen einer Anpassung der Missbrauchskontrolle an die Besonderheiten der Digitalwirtschaft einen “digitalen Ordnungsrahmen” bereitzustellen. Außerdem dient es der Umsetzung der RL 2019/1 (EU) zur Stärkung der Wettbewerbsbehörden der Mitgliedstaaten für eine wirksamere Durchsetzung der Wettbewerbsvorschriften (sog. “ECN + Richtlinie”).
Diese Änderung konzentriert sich vor allem auf die Modernisierung der Missbrauchsaufsicht(sog. Erweiterte Eingriffsbefugnisse gegenüber Unternehmen mit Marktmacht). Wesentliche Neuregelungen sind wie folgt: Durch neue und weitreichende Missbrauchsvorschriften adressiert an “Unternehmen mit überragender marktübergreifender Bedeutung für den Wettbewerb” i.R.d. §19a GWB, aber auch durch einige wesentliche Änderungen für marktbeherrschende Unternehmen und Unternehmen mit relativer Marktmacht insbesondere durch erleichterten Zugang zu Daten.
Vor neue Herausforderungen steht Kartellbehörde beim digitalen Wandel Daher zählt insbesondere die Notwendigkeit für Kartellbehörden, bei Rechtsverstößen angesichts der dynamischen Entwicklungen der digitalen Märkte zeitnah einzugreifen.
Darüber hinaus wurden es auch Änderungen an Vorschriften bezüglich der Unternehmenszusammenschlüsse vorgenommen (sog. “Optimierung der Fusion-kontrolle”): i) Anhebung der beiden Inlandsumsatzschwellen (EUR 25 Mio. → EUR 30 Mio. und EUR 5 Mio. → EUR 10 Mio.); ii) Anordnung der Anmeldungspflicht für kleinere Zusammenschlüsse mit Zugrundelegung von Sektoruntersuchungen in bestimmten Wirtschaftszweigen; iii) Fristverlängerung für Hauptprüfverfahren in der Fusionskontrolle von 4 auf 5 Monate ab Anmeldung.
Außerdem sind die neue wesentliche Regelungen dieser 10. GWB-Novelle: Änderungen im Bereich des Kartellschadensersatzes und Vereinfachung der Vorschriften zu Verwaltungsverfahren.

KCI등재

9영국의 시장조사제도에 관한 연구 - 공정거래법과 전기통신사업법에 대한 시사점을 포함하여 -

저자 : 류시원 ( Shiwon Ryu )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 42권 0호 발행 연도 : 2020 페이지 : pp. 257-296 (40 pages)

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The European Commission (EC) recently announced its roadmap on 'New Competition Tool (NCT)' aimed at fulfilling the goal of providing effective measures to address structural competition problems in digital markets. As the new tool is proposed to tackle structural issues of markets by allowing timely and effective intervention against markets, increased attention is given to the UK's market investigation (MI) authority which has features seemingly fitting the goal of the EC's proposal of NCT. The MI is a unique tool in the UK's markets regime as it leads to direct remedies for the subject market(s) without finding any individual violation of the competition law. If the EC adopts and applies a new tool akin to the MI, a significant change will be made to the competition rule of European Union and its impact is not expected to remain within the Union. Thus it would be proper and timely to review the features of the UK's MI regime and its implication on the design of NCT and our market study system.
This paper explores the procedural features of the UK's MI regime and discusses its benefits and potential risks. Also addressed will be the prospect of its role in the design of NCT as well as several considerations to be given in regard to referencing MI's systemic features and the relevant experience of the UK's competition authority in its design. While the UK's MI regime has specific benefits of filling the gap of existing competition tools by functioning as a direct measure to discover and solve root causes of the competition problems in the subject market(s), which cannot be effectively addressed by conventional regulatory or enforcive activities, there are risks of preempting other competition tools resulting in inefficient allocation of investigatory resources of the competition authority. But more important is that a tool designed for directly remedying anti-competitive effects in markets would allow for frequent or unnecessary intervention into the functioning of markets, and consequently bring about market distortion. Although its inherent benefits entitle MI due credits and provide considerable implications for improvement of our market study system, careful approaches are required when considering adoption of an MI-like system. In such review, it is advisable to consider differences between the UK's legal system and ours, maintaining a balanced view on the benefits and risks of MI.

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