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경쟁법연구 update

Journal of Korean Competition Law

  • : 한국경쟁법학회
  • : 사회과학분야  >  법학
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수록정보
수록범위 : 1권0호(1989)~45권0호(2022) |수록논문 수 : 517
경쟁법연구
45권0호(2022년 05월) 수록논문
최근 권호 논문
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KCI등재

저자 : 이승민 ( Seung-min Lee )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 45권 0호 발행 연도 : 2022 페이지 : pp. 3-42 (40 pages)

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In Korea, various regulations on online platforms have been currently discussed among regulatory agencies and the concerns about unreasonable overlapping or duplicate regulations are rising. Such duplicate regulations appear in several types, such as duplication of ex ante- and ex post regulation, that of merger filings, and that of prohibited lists of unfair practices which leads to the concurrent application of competition law and sector-specific regulations. Given the regulatory-friendly environment in Korea and the weak independence of independent regulatory agencies, unnecessary and unreasonable overlapping of competition law and sector-specific regulations is likely to occur.
Under such circumstances, it is important not to introduce unnecessary regulations in the first instance. Even when ex-ante regulations are required due to the lax enforcement of competition law, given the variety of types and business models of online platforms, comprehensive regulations on them possibly lead to over-inclusiveness and over-deterrence. In particular, sector-specific regulations on online platforms are justifiable mainly when competition law does not effectively work and when their grounds are evidenced through thorough market studies. It is also necessary to clearly demarcate regulatory jurisdictions of multiple agencies through rational construction of existing laws and regulations.
Even when the legislation of sector-specific regulations are justifiable, it is necessary to find out how to handle the side effects of the concurrent application of competition law and sector-specific regulations. A joint jurisdiction model like the U.K.'s might be discussed, but it would be more effective to implement cooperations between the competition authority and other regulatory agencies through legislation. It is also worth noting that competition authority and regulatory agencies can reduce the unreasonable duplicate investigations on businesses through the joint investigation, which has been set forth in the Framework Act on Administrative Investigations since 2007 but has not been well-noted. In addition, strengthening the independence of regulatory agencies as well as competition authority and allowing them regulatory discretions to utilize soft and flexible regulatory tools which contributes to improve regulatory outcome and performance of agencies can be a way to reduce unnecessary overlapping of competition law and sector-specific regulations as well as that of sector-specific regulations from a long-term perspective.

KCI등재

저자 : 손동환 ( Shon Donghwan )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 45권 0호 발행 연도 : 2022 페이지 : pp. 43-92 (50 pages)

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The attitude of Korean supreme court in 2021 verdict is characterized as placing emphasis on competition law regulation which is the exception of private autonomy. Ceo's duty to monitor against cartel in the shareholder's representative lawsuits, margin squeeze as the abuse of dominant position, the extension of statute of limitation in the Korean FTC's fine and strict unfairness test in the cartel are all supported by the supreme court. The purpose of Large retail business act and franchise business act are supported when balancing the purpose of making the equal position between the supplier and the large business entity, franchiser and franchisee with the private autonomy. These tendencies show the awareness to economic reality and the direction of interpretation in the Korean supreme court.

KCI등재

저자 : 홍대식 ( Dae-sik Hong )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 45권 0호 발행 연도 : 2022 페이지 : pp. 95-136 (42 pages)

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The purpose of this study is to examine the significance and limitations of the 2019 Seoul High Court judgment on the Qualcomm II case after defining the case as a case of applying the Monopoly Regulation and Fair Trade Act in Korea (“MRFTA”) to the business model of the holder of standard essential patents (“SEP”), on the premise that Qualcomm is the holder of SEPs for patents by mobile communication standards. The decision of the Seoul High Court in the Qualcomm II case poses many challenges about how the standards and methods for determining the illegality of competition restrictions when applying the regulations on the abuse of market dominance under the MRFTA to the business model of the holder of the SEPs are structured and, accordingly, what evidence and arguments The Korea Fair Trade Commission (“KFTC”) should present. This is not only a problem limited to the business model of the holder of SEPs, but also a problem that can affect exclusionary abuse in general.
In the Qualcomm II case, the KFTC is taking issue with the following three types of conduct. ① Acts of refusal or restriction of SEP licenses to competing modem chipset manufacturers, ② Acts of linking the supply of modem chipsets to mobile phone manufacturers and licenses, ③ Acts of imposing certain conditions in a patent license agreement with mobile phone manufacturers. For each of the acts ① through ③, the KFTC faithfully followed the analytic framework of case law in judging that competition restrictions were recognized by enumerating all factors that can be considered for judging anti-competitiveness by the intent or purpose and the effect, which are two elements of anticompetitiveness suggested by precedent and jurisprudence. The characteristic of the judgment structure taken by the KFTC in this case was that it presented stand-alone judgment elements for each of the actions ① and ③, but also presented judgment elements linking ① and ② acts and ①, ② and ③ acts. The point is that the reinforcement effect was expected according to the linkage between the acts in the judgment of competition-restrictiveness. However, at least at the stage of the Seoul High Court, the illegality of the acts ① and ② was recognized, but the illegality of the act ③ was not recognized, ending up only half successful so far.
In particular, the Supreme Court is expected to declare a clear jurisprudence on two issues, namely, the relationship between exploitative abuse and exclusionary abuse, and the related issue of the combined anti-competitive judgment issue. Depending on what clear position the Supreme Court will take on these issues in its ruling on the Qualcomm II case, it is expected that there will be significant changes in the development of legal principles regarding abuse of market dominance and its enforcement in the future. Meanwhile, The U.S. Federal Court of Appeals for the 9th Appeal of the United States issued a ruling not recognizing the restrictions on competition for conducts ① and ② in 2020, but the possible impact on the application of MRFTA to this case should be limited considering the differences in content, system, and jurisprudence between the Korean Competition Law and the U.S. Antitrust Law.

KCI등재

저자 : 황태희 ( Tae Hi Hwang )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 45권 0호 발행 연도 : 2022 페이지 : pp. 137-165 (29 pages)

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In accordance with the principle of freedom of contract, the undertaking is free to set the conditions of the transaction. However, if a market-dominant undertaking uses his market power of the primary market to set trading conditions that unfairly hinder competition in the aftermarket, where the market is closely related to the main products he sells, such as machinery and repair service, it can be judged as abuse.
If an market dominant undertaking in the primary market discriminates against ISO in the aftermarket, the act should be judged by considering factors such as whether intellectual property rights are exercised, management needs, and cost differences. Otherwise, it is necessary to judge the unjustness under the MRFTA whether the non-preferred undertaking is excluded from competition or whether such discrimination is intended to maintain its monopoly as well as degree of robustness in the aftermarket (including switching costs)

KCI등재

저자 : 이수진 ( Lee Soo Jin )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 45권 0호 발행 연도 : 2022 페이지 : pp. 166-197 (32 pages)

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As the rapid development of big data technology makes it possible to extract deeper and more diverse values from data, the important of data is growing. Advances in the data-driven economy are closely linked to the emergence of online platforms. Due to the rise of big data business models based on online platforms, data is not solely used as a means of the decision-making process or a product, but considered as important input into services. As a result, a diverse and deeper access to data enables businesses to compete on innovation and development to accommodate user preferences. At the same time, the strengthening of data driven network effects supported by user feedback loop, coupled with economies of scale, raise concerns or an increasing likelihood for businesses to create market dominance based on their data or monopolize the market (“winner-takes-all”). Responding to such changing market dynamics requires great efforts to understand the underlying factors and market dynamics spurring the changes, and an in-depth analysis into such drivers and market dynamics should be a starting point to regulate them. To properly address concerns related to monopolization and foreclosure of data which might harm innovation and to prevent overly intrusive regulations from interfering with the development of the 4th Industrial Revolution and competition for innovation, it is necessary to closely examine the features of each online platform and data that may affect the anti-trust analysis and review the factors to be considered in determining market dominance based on such features.
Traditional methods used to assess market dominance need to be complemented and revised to accommodate the two-sided nature and free marketability of online platforms in market definition and changes in the criteria for the assessment of market dominance resulting from factors other than traditional price such as the increase in quality, focus price, or information cost. Determining the formation of entry barriers for data requires specific and individual assessment on the network effects caused by multi-sided nature of relevant markets, the size of switching cost resulting from economies of scale, not only the degree of switching of users or multi-homing but also the nature and types of data, the structure in which collection, retention and utilization of data are made, the possibility of securing similar data by competitors or new entrants, and increase in the use value due to accumulation of large amount of data. Furthermore, a comprehensive consideration of the overall data value chain is necessary to determine the degree of market dominance since the economic value of data ecosystem is created through the data value chain and the effects that may occur in each part of the value chain should be taken into account comprehensively. Since the value that can be extracted from data varies greatly depending on the algorithm, etc., it is necessary to consider technical capabilities of analyzing and utilizing data. In addition, it is also necessary to take into account the role of the vibrant and innovative dynamic market in each phase of assessment ranging from the definition of relevant markets to the assessment of entry barriers.

KCI등재

저자 : 주진열 ( Jinyul Ju )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 45권 0호 발행 연도 : 2022 페이지 : pp. 198-233 (36 pages)

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This article addressed some problems of profit-maximizing price discrimination (PD) using artificial intelligence system (AIPD) mainly from the perspective of Korean antitrust law. Considering the realities of the online markets as well as the current level of AI system for dynamic pricing, it seems not possible to perform the first-degree or perfect PD. Indeed AIPD which has raised the issue of fairness is the third-degree in terms of Pigouvian economics. Because the third-degree PD is basically lawful under antitrust law, AIPD as the the thirddegree PD cannot be regarded per se illegal. However, even though AIPD is not prohibited by antitrust law, those who facing a higher price due to AIPD would have the strong feeling of unfairness, regardless of competitive impact on market. Either data protection law or consumer protection law could better be used to deal with the issue of AIPD from the perspective of 'common good' in public law.

KCI등재

저자 : 권오승 ( Oh Seung Kwon )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 45권 0호 발행 연도 : 2022 페이지 : pp. 234-252 (19 pages)

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Article 25 (1) of Monopoly Regulation and Fair Trade Act(here after “MRTA”) prohibits in principle to exercise the voting right of stocks of domestic affiliated companies which carry on the financial business or insurance business belonging to an enterprise group subject to the limitation on mutual investment. This institute was introduced from the article 11 of Japanese Antimonopoly Act and aims to prevent the financial or insurance companies from expanding or strengthening the control of corporate groups by acquiring and owning stocks of domestic affiliates using customer deposit funds, and to prevent financial capital from being dominated by industrial capital.
Although Japanese Antimonopoly Act restricts the scope of financial companies subject to the restriction by article 9-2(1), MRTA does not restrict the scope of financial companies subject to the restriction. Therefore in Korea, all kinds of financial companies belonging to an enterprise group subject to the limitation on mutual investment became to subject to the restriction. As a result, there is a fear of being criticized as an unconstitutional system that violates the constitutional prohibition of excesses by not limiting the scope of financial companies subject to the system to the minimum necessary.
In order to solve this problem, it would be desirable to reasonably limit the scope of financial companies under this restriction through amendments to the law. However, since the amendment of the law is a difficult task that requires a lot of time and effort, the Fair Trade Commission will have to apply it carefully so that such problems are not exposed when applying this restriction until the law will be amended.

KCI등재

저자 : 김영열 ( Youngyoul Kim ) , 이호영 ( Hoyoung Lee )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 45권 0호 발행 연도 : 2022 페이지 : pp. 253-285 (33 pages)

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Selective distribution system is a system that has been developed in the EU for the purposes of protecting brand image of luxury products and/or providing high-end customer services. It can be summarized as a system by which the supplier may appoint its distributors based on certain criteria such as the hiring of professional staff members, the investments in interior/exteriors, the location and the appropriateness of the relevant shop and its name, etc., and such approved distributors may resell the relevant products only to other approved distributors and/or end-users. In this regard, there have been a number of cases in which the EU courts considered the legality of restrictions on the use of a variety of distribution channels such as big marts and online marketplaces, and in particular with respect to online marketplaces, there are some recent discussions on how a ban on the use of same shall be assessed under EU competition law.
On the other hand, since the Monopoly Regulation and Fair Trade Act (the “MRFTA”) has not adopted such system to date, relatively there is a lack of sufficient remedies to protect the brand image of luxury products in Korea. Against this backdrop, the Korea Fair Trade Commission (the “KFTC”) recently declared an act to preclude distributors from transacting with online marketplaces and big marts to constitute an unfair customer restriction under the MRFTA. In this regard, in reviewing the legality of such restrictions on the use of sales channels, it is worth considering the relevant EU court precedents and recent discussions regarding how such restrictions shall be assessed in terms of restricting competition. Based on the foregoing, this article is aimed at reviewing the protection of brand image and its limitation under the MRFTA.

KCI등재

저자 : 이선희 ( Sun Hee Lee )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 45권 0호 발행 연도 : 2022 페이지 : pp. 286-313 (28 pages)

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Injunctive relief of unfair trade practices was introduced as a revision of the Monopoly Regulation and Fair Trade Act at the end of 2020. However, the above introduction is only the first step, and interpretative and legislative efforts are required for the above system to be properly utilized.
As an interpretation of the Act, I suggested that the right to claim preventive prohibition can be exercised, and that the content of the prohibition can be actively ordered to the extent necessary to eliminate illegal results or causes of infringement.
Furthermore, I suggest the representative actions by organizations for the protection of the collective interests of consumers or small enterprisers and to specifically stipulate the right to claim measures necessary for removal of results or prevention of infringement.

KCI등재

저자 : 유영국 ( You Young Gug )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 45권 0호 발행 연도 : 2022 페이지 : pp. 314-337 (24 pages)

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The consent decree has raised a fundamental question about whether the system can be effective in the enforcement of the Monopoly Regulation and Fair Trade Act (MRFTA) since its introduction. Also, as the system has been implemented for ten years, the assessment for its pros and cons have become more apparent, and the revitalization of the system has been constantly discussed.
On the other hand, such assessment for the consent decree has been made not only because of its nature but also of the expansion of skeptical views on the system due to poor implementation management. In fact, existing discussions relating to the system focused mainly on specific steps, including 'whether or not to initiate the procedure' or 'confirmation of the consent decree resolution' in the procedure of the system. As a result, despite negative views on the effectiveness of the implementation or the effectiveness of the inspection after the consent decree is finalized, it is true that the content related to 'implementation management' was either excluded from the discussion itself or treated passively.
Looking back critically at such existing situation, 'implementation management of consent decree' should be considered to be encompassed in light of nature of the consent decree. The procedures of the implementation management may not be understood as a separate process different from series of steps leading to the confirmation of the proposed consent decree.
In April 2021, the partial amendments to the MRFTA was passed by the National Assembly in order to enhance the reliability and transparency of the overall case handling procedure, including investigation and deliberation, as well as to strengthen the due process of Korea Fair Trade Commission (KFTC) investigation. This article reviews the regulation related to the 'implementation management system of consent decree' introduced as KFTC can entrust the management task to the Korea Fair Trade Mediation Agency (KOFAIR) and Korea Consumer Agency (KCA), and then suggests the substantive and procedural supplementary measures.

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