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경쟁법연구 update

Journal of Korean Competition Law

  • : 한국경쟁법학회
  • : 사회과학분야  >  법학
  • : KCI등재
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  • : 연속간행물
  • : 반년간
  • : 1598-2335
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수록범위 : 1권0호(1989)~35권0호(2017) |수록논문 수 : 406
경쟁법연구
35권0호(2017년 05월) 수록논문
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KCI등재

1거래공정화 규제체계상 `대리점법`의 지위와 역할

저자 : 신영수 ( Shin Young-su )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 35권 0호 발행 연도 : 2017 페이지 : pp. 3-28 (26 pages)

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Among legislations governed by the Korea Fair Trade Commission, the portion and importance of the norms regarding fair trade have been contiguously growing. In those circumstances, another legislation(the Act of Fair Transaction in Agency) has recently joined the ranks of the norms. The new legislation pursues to regulate unfair transaction which can be occurred around the environment of the agency. On the one hand, this newly enacted law follows existing legislations` example which have been showing unique and strong way of approach in the korean legal system on the unfair trade problem. But it shows differentiated aspects from other related legislations as well, in terms of the characteristics of the regulation, the relationship with the Monopoly Regulation and Fair Trade Act(hereinafter `MRFTA`) and other collateral legislations such as the Subcontract Act, the Franchise Act etc. The necessity of enacting a new law was not that vivid and independent from the MRFTA comparing to other collateral laws. Fundamentally, whether intervention of the government on unfair trade issue through this kind of legislation is appropriate or even effective is not clear. This article is composed on critical mind on the newly enacted Act on Fairness of Agency Transaction. It tries to investigate distinct characteristic of the law, and instead of the conclusion it points out some limitations and problems of the law in the aspect of fair trade regulation system in Korea.

KCI등재

2유통분야 불공정거래행위에 대한 제재의 재구성

저자 : 이봉의 ( Bong-eui Lee )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 35권 0호 발행 연도 : 2017 페이지 : pp. 29-61 (33 pages)

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The Distribution Law concerning unfair trade practices(hereafter “the relevant Distribution Law) aims to promoting fair trade order and for this purpose it includes administrative, criminal and civil sanctions. Meanwhile, the Korea Fair Trade Commission(hereafter “the KFTC”) has tried to enhance deterrence effect by means of imposing enormous fines and facilitating private enforcement e.g. damage actions. However, this approach seems to be inefficient, especially because the administrative sanction has been focused on undertakings, not persons who are directly engaged in the actual infringements and have an incentive to commit unfair practices. In principal, fines cannot be imposed on individuals; they are hard to take criminal responsibility due to the KFTC`s reluctance to file criminal request to the Prosecutor General. Calculating corporate fines are mainly based on the “relevant turnover” of the challenged undertakings, which has not any rationale in terms of relevance, appropriateness and proportionality criteria and lacks any coherence under the relevant Distribution Law system. Excessive fine is not a panacea. What matters, is who is to undertake responsibility for that infringement. In this context, it is suggested de lege ferenda that the KFTC shall impose fines, in addition to an undertaking(more exactly the company ad a legal person), on representatives, directors or persons those act to the benefit of that undertaking. As a rule, wider application of criminal sanction through abolition of eliminating the KFTC`s exclusive complaint, is acceptable so far as considered gradually.

KCI등재

3최근 공정거래법상 기업결합 심결례 분석

저자 : 홍대식 ( Hong Dae Sik )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 35권 0호 발행 연도 : 2017 페이지 : pp. 62-112 (51 pages)

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This article aims to review recent cases of the Korea Fair Trade Commission (`KFTC`) regarding merger & acquisition under the Korean Competition Law and analyse normative validity of such cases. For this reason, two cases are selected as target cases. One is Microsoft/Nokia merger in 2015 (`MS/Nokia`) and the other is SK Telecom/SK Broadband and CJ Helovision merger in 2016 (`SKT/SKB/CJHV`). The former was closed with a consent decree and the latter was blocked. The review and analysis in this article are carried out commonly for both cases by distinguishing the part of definition of the relevant market from the part of assessment of anticompetitiveness in accordance with the KFTC`s conceptual framework for analysis to be constructed for the purpose of appraisal of concentrations. The differences in case management affect the scope of the analysis. In MS/Nokia, only issues of definition of the relevant product and construction of theories of competitive harm have been dealt with because the KFTC did not go further into the issue of determination of anticompetitiveness. By contrast, in SKT/SKB/CJHV, issues of definition of the relevant market, determinations of anticompetitiveness of horizontal merger and vertical merger have been contemplated one after another. The issues of determinations of anticompetitiveness include a matter of how to devise conceptual framework for analysis, appraisal of adopted theories of competitive harm and method and degree of proving anticompetitiveness. The overall analysis result of the article can be summarized as follows. KFTC`s MS/KFTC consent decree decision is noticeable in that it caught the right point of what competition law should concern in vertical merger between mobile related patent and mobile device businesses by separately defining mobile patent technology market at the market definition stage. KFTC`s SKT/SKB/CJHV decision deserves credit for its efforts as much as possible to construct theories of competitive harm and prove it in relation to two categories of horizontal merger and one category of vertical merger. However, it is regrettable that the efforts appears to have ended up with a traditional outcome weighing heavily with a market concentration factor. There should have been more focus on looking at how the scope and extent of competitive constraints exerted on the merged parties by other market participants would change.

KCI등재

4카르텔 손해액의 산정 문제: 계량경제학 방법론 논쟁의 시사점

저자 : 주진열 ( Ju Jinyul )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 35권 0호 발행 연도 : 2017 페이지 : pp. 113-140 (28 pages)

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This article considers the debates of methodology of econometrics between Tinbergen and Keynes, drawing possible lessons for cartel damages in the context of Korean antitrust law. In some cartel damage cases the Korean Supreme Court has ruled that the plaintiff must quantify the amount of damages with econometric analysis based on the but-for price test. Most economists as well as most lawyers seem agree with the Court`s ruling. Most economists have believed that the matter concerning cartel damages is only about technical methods rather than methodology. Indeed it seems that modern econometrics does not take the problem of methodology seriously. However, assumptions which multiple regression depends on are extremely restrictive and unreasonable, there still exists a fundamental question whether the but-for price really can be known from multiple regression. This article concludes that there is no grantee that we may obtain the but-for price with econometrics, quantifying cartel damages with multiple regression is just a kind of belief or myth rather than sound science.

KCI등재

5묵시적 합의의 증명과 입증도에 관한 소고

저자 : 강상욱 ( Kang Sang Wook )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 35권 0호 발행 연도 : 2017 페이지 : pp. 141-161 (21 pages)

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It is not easy for the plaintiffs to deny the existence of agreement between undertakings in cartel cases if there are direct evidences, such as written documents, recorded conversation of executives and leniency applicant`s testimony. So, chiefly when a tacit agreement exists the plaintiffs in cartel cases may deny the existence of agreement. The Supreme Court has mainly ruled that the Fair Trade Commission(`FTA`) has to prove the meeting of minds between undertakings as well as parallel behavior in order to recognize the existence of unfair collaborative acts. In my opinion, it would be better to say that the FTC has to prove plus factors as well as parallel behavior between undertakings in order to recognize the existence of tacit agreement. There is a decision of the Supreme Court similar to my opinion. When undertakings fix prices in the oligopolistic market, they do not necessarily raise prices together. Parallel behavior may be recognized although prices are gradually increased or decreased and the increase or decrease rate is somewhat different. It seems that limiting the scope of parallel behavior reasonably represents the theory of interdependence in the oligopolistic market. Plus factors need to be superior qualitatively as well as abundant quantitatively. Even if there is parallel behavior between undertakings and are continuous meetings through some kinds of organization or trade association for a considerable period of time, it is not enough to recognize the tacit agreement for the very reason. In order to recognize it, additional evidences are required, for example, concrete conversation about price-fixing during the meetings, systematic exchange of information on price, etc. The standard of burden of proof for the FTC in cartel cases might be similar to civil cases. It is suggested that the court decide whether there is a tacit agreement for each case independently being aware of the risk of excessive enforcement from recognizing it too easily.

KCI등재

6공정거래법 판례 소개(2016년 선고) - 불공정거래행위 및 기타 사건 -

저자 : 손동환 ( Dong Hwan Shon )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 35권 0호 발행 연도 : 2017 페이지 : pp. 162-187 (26 pages)

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This thesis aims at introducing Supreme court`s precedents in 2016 which has some issues of competition law including subcontracting law except cartel. The main characteristic point of the precedents is to maintain the prior stance. Strict standard toward unfair support act and calculating standard in total amount of relating sales in rebate case is maintained. We can find precedent`s attitude toward notice in FTC which denies the charater of regulation in Mass Mart Notice case. Also the precedent accept the damages from the point of rational causal relationship which is sued by credit card receipt retrieving service provider against 1st service demander VAN and 2nd service demander credit card company who were in charge of cartel. There were cases of important issue in legal translation. First is whether undertakings are able to make a sue against reduction dismissal in FTC. Verdicts in high court is separated. Supreme court accept the ability to sue the disposal considering the whole anti-trust legal system and real practice in FTC. Second is whether FTC`s payments order in subcontracting law is illegal or not. This has something with constitutional issue related right to a trial. The precedent denied the possibility of FTC`s order from the point of legal translation in choosing difficulty of the appropriate subcontract price while accepting the constitutionality.

KCI등재

7수직적 구조에서 지배력 남용 판단에 관한 고찰

저자 : 홍명수 ( Hong Myungsu )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 35권 0호 발행 연도 : 2017 페이지 : pp. 191-214 (24 pages)

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A patentee has the exclusive right, and a use of the right will become the object of protection in the Patent Act. But if the use of patents belongs to the misuse, Patent Act will not protect the use of patents and will be applied the Monopoly Regulation and Fair Trad Act(hereafter MRFTA) will be applied to the use of patents. At the process of the application it is decisive to review the legitimacy of the use of patents, and the review is legally based on the clause 59 in MRFTA, which stipulates that “The provisions of this Act does not apply to a legitimate exercise of rights under the Copyright Act, the Patent Act, the Utility Models Act, the Design Act, or the Trademark Act.” The review of the legitimacy of use of patents will be made by the two criterions, patent policy and competition policy. If the conduct of a patentee is decided as the misuse of patents, MRFTA will be applied to the conduct, and it should be considered whether the conduct corresponds to the breach of the regulations of the abuse of market dominant power. As the abuse of the market dominant power is considered from the two perspective, exploitative abuse and exclusive abuse, the decision on the abuse of patents shall be based on the two criterions. The standard essential patent must be specially considered in two types of review.

KCI등재

8알고리즘을 통한 가격정보의 교환과 경쟁법적 평가

저자 : 최난설헌 ( Nansulhun Choi )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 35권 0호 발행 연도 : 2017 페이지 : pp. 215-241 (27 pages)

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Nowadays computer and internet are extremely important in our daily life. Convenience created by technological innovation brings us to the computer-related environment. As commercial transactions depend on more computers and other information technologies, competition law needs to develop a new survey methodology that is consistent with the new trend. Due to sophisticated computers, technological innovation will be accelerated, and competition law regulatory agencies will face greater burden as competition environment change significantly. In 2015 the U.S. Department of Justice (hereinafter DOJ) investigated the allegation of pricing fixing in Amazon marketplace and accused. In 2016, in Eturas case, the European Court of Justice (hereinafter ECJ) determined that the development of innovative technological markets is important in cartel`s agreement. As the pricing power is transferred from undertaking to a pricing algorithm, a major concern in competition law is that algorithm will foment cartel (particularly conscious parallelism), and thus, price competition will be less meaningful. Due to the transparency, which is a characteristic of a digital market, algorithm changes the mobility and agility of a market and encourages implicit consent among market players. Market players have a sufficient incentive to transfer the pricing power to a computer. It can be said that an algorithm damages competition, particularly when the algorithm ignores a market price, does not respond to changes in a market, and acts solely for the market players` pursuance of profits. Accordingly, when the government carries out competition policies, the government needs to examine whether “agreement” or “intent” under the competition law is suitable for the new era. In addition, the government should seriously consider to what extent competition law regulatory agencies intervene in innovative industries.

KCI등재

9온라인 플랫폼에서 소매가격 최고우대조항의 경쟁법적 문제

저자 : 이선희 ( Sun Hee Lee )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 35권 0호 발행 연도 : 2017 페이지 : pp. 242-277 (36 pages)

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The MFC clauses designed to respond to market failures are used in an online environment to facilitate undue collective action or to reinforce market dominance or trading position of a retail platform in a two-sided market that features indirect network effects. However, there is no need to hastily conclude that the online retail MFC clauses themselves are anti-competitive because of the possibility of innovation that we have not yet experienced. Instead, it is better to resort to the existing unfair collective act or market dominant position abuse, and unfair trade practices regulations. In particular, in determining whether abuse of market dominant position or unfair trade practice is applicable, the status of the online platform as a party to the above agreement, whether the similar agreement is made between other suppliers and platforms, the extent to which competition is reduced or consumer welfare declines due to the above clauses.

KCI등재

10공정거래법상 전속고발제도에 관한 연구 - 법집행 적정성의 관점에서 -

저자 : 조성국 ( Sungkuk Cho )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 35권 0호 발행 연도 : 2017 페이지 : pp. 278-301 (24 pages)

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Competition law is a basic legal foundation in market economy and the enforcement of the law has a tremendous impact on the market. Nonetheless, it is not easy to strike a balance between over-enforcement and under-enforcement. The Monopoly Regulation and Fair Trade Act(MRFTA) endows the Korea Fair Trade Commission(KFTC), which has specialty in economic analysis and detailed market analysis, with the exclusive authority in filing a complaint for criminal prosecution on violation of the Act. According to Article 71(1) of the Act, any offense as prescribed in article 66 and 67 shall be prosecuted only after a complaint is filed by the KFTC. The purpose of this article is to assure appropriate enforcement of the Act by allowing the KFTC to judge in advance whether to apply administrative measure or bring the case to prosecution for breach of the Act. At the same time, the Act limits the discretionary power of the KFTC in filing a complaint. According to Article 71(5) of the Act, upon receiving a request for filing a complaint from the Prosecutor General, the Chairperson of the Board of Audit and Inspection, the Administrator of the Supply Administration or the Administrator of Small and Medium Business Administration, the chairperson of the KFTC shall file the complaint with the Prosecutor General. In Korea, both corporations and individuals are subject to criminal prosecutions as well as administrative sanctions for most violations of the Act including cartel. There are many countries that criminally prosecute for cartel conduct including price fixing, bid rigging, and horizontal market allocation. However, it is hard to find the example of legislation that allows both administrative sanctions and criminal sanctions except for Japan, which rarely punishes corporations for the infringement of competition law criminally. I think that double sanctions for corporations is not desirable or effective for deterrence. The sanctions against an individual could be a more effective deterrent than the sanctions against corporations. Especially, the risk of jail could encourage individuals to resist corporate pressure to enter into violations. The sanctions against corporations are not effective because the sum of criminal penalty is relatively too weak due to joint penal provisions in the light of the history of legislation.

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