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한국경쟁법학회> 경쟁법연구> 웹 크롤링의 경쟁법적 고찰

KCI등재

웹 크롤링의 경쟁법적 고찰

An Analysis on Web Crawling from a perspective of Competition Law

황태희 ( Tae Hi Hwang )
  • : 한국경쟁법학회
  • : 경쟁법연구 43권0호
  • : 연속간행물
  • : 2021년 05월
  • : 174-208(35pages)
경쟁법연구

DOI


목차

Ⅰ. 들어가며
Ⅱ. 데이터 주도 경제와 혁신 그리고 크롤링
Ⅲ. 크롤링의 경쟁법적 평가
Ⅳ. 크롤링의 한계
Ⅴ. 맺음말
참고문헌

키워드 보기


초록 보기

The purpose of the Competition Law is to enhance consumer welfare through free and fair competition in the market. In particular, the nature of search-based services in a data-driven economy requires data to be constantly shared, communicated, and analyzed in the marketplace. The Web crawling, which uses information collection robots to collect necessary information from other websites, is becoming common in the trading world as a new way of collecting the necessary information directly among the numerous information posted on the Internet. Web crawling is an essential act of gathering information in such search-based services, not in itself to limit the operations of others. It is a consumer-friendly mechanism that promotes price and quality competition for products or services and increases consumers’ choice because it can quickly and accurately provide the desired search results, product information, photos, and reviews.
Thus, unfair restricting web crawling could impede consumer interests and also create obstruction of business activities for counterparts and competitors. It would be necessary to prevent large online operators from monopolizing information or distorting competition so that various information can be provided to consumers. As to whether it is illegal to crawl copyrighted content or databases, it will be necessary to determine whether crawling is consistent with the fair use of copyright. And if collecting information through crawling helps consumers expand their options and promote their welfare, it is necessary to avoid hastily judging them as violations of the law. The most important thing in the data-driven economy is that operators can compete fairly and that consumers should benefit from competition and innovation, which should not be overlooked in the legal judgment of crawling.

UCI(KEPA)

간행물정보

  • : 사회과학분야  > 법학
  • : KCI등재
  • :
  • : 반년간
  • : 1598-2335
  • : 2671-6402
  • : 학술지
  • : 연속간행물
  • : 1989-2021
  • : 494


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KCI등재

1착취남용의 관점에서 온라인 플랫폼 사업자를 규율하는 방안에 대하여

저자 : 박세환 ( Sehwan Park )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 3-59 (57 pages)

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초록보기

Au titre d'abus d'exploitation, l'Autorité de la concurrence a sanctionné Google pour d'avoir abusé sa position dominante en adoptant des règles de fonctionnement de sa plateforme publicitaire Google Ads vagues et difficilement compréhensibles et en les appliquant de manière aléatoire. Ensuite elle a ordonné à Google des mesures conservatoires à l'occasion de l'entrée en vigueur de la loi du 24 juillet 2019 sur les droits voisins. Selon elle, Google est susceptible d'avoir abusé de sa position dominante sur le marché des services de recherche généraliste en imposant des conditions de transactions inéquitables aux éditeurs et agences de presse. En vertu d'abus d'exploitation, elle a enjoint à Google de conduire des négociations de bonne foi avec les éditeurs de presse et l'AFP pour conclure des contrat de licence.
Quand même, il est contestable que les éléments subjectifs, par exemple le détournement de l'esprit d'une loi, suffisent à constituer un abus de position dominante. Par ailleurs, l'article L. 420-2 du Code de commerce prévoit que l'Autorité de la concurrence est obligée de démontrer les effets anticoncurrentiels pour la qualification d'abus. Pourtant, il est souhaitable de s'intéresser à ces décisions un peu audaces qui peuvent nous montrer les dispositions utiles et les problèmes difficiles en luttant contre l'abus de la plateforme numérique.

KCI등재

2온라인플랫폼 공정화법 제정안에 대한 검토

저자 : 이정란 ( Jeongran Lee )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 60-96 (37 pages)

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초록보기

The growth of the online market has led to the growth of IT startups and the development of related derivative industries; however, such growth has also brought about new problems such as: (i) issues relating to the reinforcement of the superior bargaining position of the online platforms, the center of the market growth, and (ii) issues relating to the emergence of unfair trade practices. More specifically, examples of such issues include the following acts by online platform businesses: unilaterally altering contractual terms and conditions or suspending its services; transferring the return costs to users; intentionally exposing the platform businesses' own products or its affiliates' products as the top search result; and providing certain business users “most-favored customer clauses.” In order to resolve such problems, the EU and Japanese governments have enacted laws and regulations to regulate activities relating to online platforms and the Korean government is also in the process of enacting laws and regulations for this purpose.
The reason for many countries to enact laws and regulations to regulate online platforms around the similar time would perhaps be due to the fact that the current laws and regulations in place are not sufficient to resolve the problems and issues arising from activities related to online platforms. The fact that online platforms are ever evolving in combination with various factors, however, is a reason for the new laws and regulations to be different in form from the current laws in place. This means that there should be a good balance between innovation and regulation.
In Korea, the new bill pending legislation is based on the current structure of the Korean laws regulating unfair trade practices. However, the new bill is notable in the fact that it places an emphasis on preventative regulatory measures in order to promote the transparency of commercial transactions, and that it newly provides for separate criteria to determine what is the “superior bargaining position” in a commercial transaction. In comparison to the similar laws of other jurisdictions, the new bill is similar to other countries' laws in that they emphasize the importance of preventative regulatory measures, but the new bill is also different in that it directly regulates unfair trade practices as well as sanctions for any violation.
In this article, Author suggests that, in order for the new bill on online platform law to have its regulatory feasibility, the required fields of a contract, to be published through a public notice , should be limited to an appropriate extent and that specific standards should be provided for. In addition, Author further suggests that the concept of intermediary services should be interpreted with limitations in accordance with the purpose of the new bill. Last but not least, Author particularly proposes that the market should voluntarily change since the new bill has provided for a policy giving direction on the regulation of online markets.

KCI등재

3온라인 플랫폼 사업자의 이용약관에 대한 경쟁법적 규제 - 독일 Facebook 사건의 시사점을 중심으로 -

저자 : 조혜신 ( Hye-shin Cho ) , 강보선 ( Bo-seon Kang )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 97-130 (34 pages)

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초록보기

In regulating abuse of dominance cases concerning online platforms under competition law, exploitative abuse should be the main focus in light of the practices that violate the interests of platform users by platform undertakings. The exploitative practices of online platforms include excessive pricing or imposition of any terms and conditions on users. In particular, considering that major online platforms are generally dominant undertakings in the relevant market, prohibition of abuse undermining consumer interests stipulated in Article 3-2 (1) of the Monopoly Regulation and Fair Trade Act may have significant implications. In this sense, the German Facebook case could provide important implications.
Due to the complexity and opacity which arise from the contract made by online platforms, consumers in online platforms are not only structurally inferior to information or to bargaining power, but they are also in a situation where there is not effective competition due to the presence of dominant undertakings in the relevant market. It would be difficult for consumers to refuse to enter into contracts with dominant undertakings and have opportunities to enter into contracts with other undertakings. Under these dual constraints, the purpose of the latter part of paragraph 5 in Article 3-2 of the Korean Competition Law is to protect consumers whose interests are likely to be infringed directly. Furthermore, this would require a broader interpretation of the concept of consumer interests. The reference for this concept of consumer interests could be the 'self-determination' that is the premise of freedom of contract, and the basic rights of consumers under the Framework Act on Consumers. In particular, factors that violate consumer self-determination include constraints on the possibility of alternative choices, restrictions on accessing the information on which choices are based, or imposition of disadvantages terms and conditions of contract, which are the main reasons for undermining consumer interests.

KCI등재

4조건부(충성)할인과 시장지배력 남용 문제에 대한 고찰 - 대법원 2019. 1. 31. 선고 2013두14726 판결을 중심으로 -

저자 : 주진열 ( Ju Jinyul )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 133-173 (41 pages)

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In 2019, a chamber of the Supreme Court of Korea decicded that Qualcomm's conditional discountsoffered to Korean cell phone makers amounted to anticompetitive exclusive dealing for the reasons that the discounts in question caused exclusive or foreclosure effect. This decision is not consistent with the effects-based approach and the rule of reason adopted by the 2007 POSCO full bench decision. First of all, the discounts in question were nothing more than pricing. Second, exclusive effect can not be the same as anticompetitive effect because fair competition also causes exclusive effect. Therefore, exclusive effect cannot distinguish anticompetitive conducts with competitive conducts. That's why the POSCO full bench adopted the effects-based approach and the rule of reason in 2007. According to the POSCO jurisprudence, courts cannot condemm conditional discounts when the KFTC fails to prove anticompetitive effect. The KFTC had never proved anticompetitive effect of the discounts in question. The Qualcomm chamber made an error by failing to follow the effects-based approach of the 2007 POSCO full bench decision.

KCI등재

5웹 크롤링의 경쟁법적 고찰

저자 : 황태희 ( Tae Hi Hwang )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 174-208 (35 pages)

다운로드

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초록보기

The purpose of the Competition Law is to enhance consumer welfare through free and fair competition in the market. In particular, the nature of search-based services in a data-driven economy requires data to be constantly shared, communicated, and analyzed in the marketplace. The Web crawling, which uses information collection robots to collect necessary information from other websites, is becoming common in the trading world as a new way of collecting the necessary information directly among the numerous information posted on the Internet. Web crawling is an essential act of gathering information in such search-based services, not in itself to limit the operations of others. It is a consumer-friendly mechanism that promotes price and quality competition for products or services and increases consumers' choice because it can quickly and accurately provide the desired search results, product information, photos, and reviews.
Thus, unfair restricting web crawling could impede consumer interests and also create obstruction of business activities for counterparts and competitors. It would be necessary to prevent large online operators from monopolizing information or distorting competition so that various information can be provided to consumers. As to whether it is illegal to crawl copyrighted content or databases, it will be necessary to determine whether crawling is consistent with the fair use of copyright. And if collecting information through crawling helps consumers expand their options and promote their welfare, it is necessary to avoid hastily judging them as violations of the law. The most important thing in the data-driven economy is that operators can compete fairly and that consumers should benefit from competition and innovation, which should not be overlooked in the legal judgment of crawling.

KCI등재

6공정거래법상 거래금액기반 기업결합 신고기준 도입의 의미

저자 : 심재한 ( Sim Jae Han )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 209-232 (24 pages)

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Article 11 (2) of the revised Korea Antimonopoly and Fair Trade Act, which takes effect from December 30, 2021, introduced the thresholds based notification standards for merger control as follows. ① The total amount of the value paid or invested in return for a merger must be equal to or greater than the amount prescribed by Presidential Decree. ② The merged company shall operate at a considerable level as prescribed by Presidential Decree in Korea. According to the revised law, even if other companies' assets or sales fall short of KRW 30 billion, the amount of transactions is more than a certain standard, and if they operate at a significant level in the domestic market, they will be obliged to notify. German Competition Act (GWB) and the Austrian Cartel and Competition Law Amendment Act 2017 (KaWeRÄG) introduced a system based on the consideration of the opposing payments paid for merger to reduce defects in the regulation. Section 35 (1a) GWB and Section 9 (4) of the Austrian Cartel Act 2005 (KartG) close a gap in the system of merger control so that it is able to perform its function to the fullest extent in an increasingly dynamic economic environment. The practical problem with the introduction of the transaction amount-based merger notification standard under the Korea Antimonopoly and Fair Trade Act is how much the transaction amount, which is the notification standard, will be set. In this paper, the implications of the introduction of the transaction amount-based merger notification system in Korea will be examined.

KCI등재

7기업집단의 동일인 확정에 관한 검토

저자 : 서정 ( Jeong Seo )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 233-259 (27 pages)

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초록보기

The determination of the same person has an important normative significance. The scope of the enterprise group(business group) and whether it is a regulated large business group depends on who is determined as the same person in the business group. In the meantime, each business group has decided on the same person through the so-called internal agreement among members of a controlling family and submitted it to the Fair Trade Commission(FTC), and the FTC has determined the same person based on these data. It is believed that the FTC's practices on the determination of the same person have not deviated significantly from the socio-economic perception of the general public. However, in recent years, in the process of succession of management from generation to generation, the share of ownership of the controlling family continues to dilute, disputes over management among these family members increase, and corporate groups with ownership and governance structures different from those of conventional chaebols have appeared. There are many changes in the environment surrounding the confirmation of the same person.
The FTC can exercise its discretion in determining a specific company or a specific person as the same person among a number of candidates based on data collected legally. In exercising such discretion, the decision should be checked once again by fully reflecting the legislative purpose of the Monopoly Regulation and Fair Trade Act(MRFTA), maintaining objective fairness, and sufficiently presenting the data to assess the legality of the decision. Considering the widespread effect of the designation of a business group, the designation should be made in an objective, transparent, and predictable manner as much as possible, so the determination of the same person should be, in principle, based on a quantitative 'equity ratio' standard. However, in exceptional cases where it is difficult to uniquely determine the same person based on the equity ratio alone, or if the 'equity ratio' standard is far from economic reality or social perception, it would be desirable to determine the same person in consideration of qualitative 'control' standard.
Specifically, if there are multiple candidates for the same person, such as a person who exerts a dominant influence on the management of the company other than an unconscious stakeholder, the FTC will ultimately select the person who meets the legislative purpose of the corporate group regulation system. On the other hand, there is a concern that the socioeconomic realities of the corporate group's governance relationship may not be properly reflected when the 'equity ratio' standard is mechanically applied to a business group in dispute over management. In addition, in the case of companies in which the National Pension Service or other funds occupy the largest shareholder position with around 10% equity, a more cautious approach is needed to determine a person with minority interests as the same person. It would be desirable for the FTC to present criteria that stipulate more specific principles and procedures for the determination of the same person. In the long term, it is necessary to consider the method of separating the reference point of the business group from the regulated groups of people to prevent tunneling in large corporate groups.

KCI등재

8상당한 규모의 거래를 이용한 특수관계인에 대한 이익제공행위의 판단 기준

저자 : 정재훈 ( Jae Hun Jeong )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 260-296 (37 pages)

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초록보기

Section 23-2 of the Korean antitrust law (the Monopoly Regulation and Fair Trade Act), a provision that prohibits specially related persons from raking in unfair advantages, was enacted to limit the private interests of family members of conglomerate presidents. This provision stipulates four types of conduct including tunneling in corporate law. However, the clause has semantic ambiguities that leave open the interpretation of its objects, scope, and application to specific cases.
Since the new clause was put into effect, Korean Fair Trade Commission (hereafter “KFTC”) has mainly enforced against the violation of subparagraph 1 type, conducting transactions under terms that are substantially favorable to the terms that have been applied or judged to be applicable to normal transactions. Recently, KFTC has been actively investigating and sanctioning against the violation of subparagraph 4 types, conducting transactions without reasonably considering factors like transaction parties' business ability, financial status, credit rating, technical skills, price, terms of the contract, or without comparing these factors against those of other enterprises.
However, short of any precedents, applying subparagraph 4 of section 23-2 remains a challenge. This article reviewed legal issues and suggested a proper way to construe the phrase of reasonable consideration, substantial size, and unfair profits.
First, lack of reasonable consideration is a necessary condition for a transaction to be considered a violation of the given clause. The term reasonable consideration is an abstract and open notion encompassing business ability, financial status, credit rating, technical skills, price, and terms of the contract. The act of comparing these factors with those of other enterprisers is typically seen as conforming to the reasonable consideration requirement. The Presidential Decree additionally requires relevant transactions to conform to a proper selection process. Yet, any company that belongs to an enterprise group can evade the stricture, not only regarding reasonable consideration but also with the proper selection process. In addition, reasonable consideration is not confined to procedural standards. Thus, given that a reasonable and substantial transaction was made, even if the procedural requirements are not fully met, a transaction can be seen as satisfying the reasonable consideration prerequisite.
By extension, transactions should meet the substantial size requirement before it is considered a violation of the clause. However, what qualifies as a substantial size is hard to measure or fix. Relevant markets, a devolving entity's turnover, the other party's turnover, and competitors should be comprehensively considered to establish a variety of standards to guide the court.
In the future, courts should specify the standard and scope of reasonable consideration, substantial size, and unfair profits that will play a key role in deciding what qualifies as a violation and the strength of evidence. Once these principles are established, the legislator's intent to prevent specially related persons from gaining unfair advantages would be better reflected in the enforcement of the law. Consistently enforcing these rules will enhance the predictability of the application, and in turn, guide business entities better.

KCI등재

9국내외 개인정보보호정책의 비교분석을 통한 프로파일링 관련 소비자 이슈의 고찰과 적용

저자 : 양수진 ( Su Jin Yang )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 297-321 (25 pages)

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With the passage of the revision bill of the 'Data 3 Act' aimed at the development of domestic companies in the recent 4th industrial revolution, research on the rights and interests of individual consumers who provide personal information at the same time needs to be expanded. Therefore, this study was to define profiling by comparing the GDPR and the revised Personal Information Protection Act, and to analyze the privacy policies and conditions of major domestic and global IT companies based on consumer privacy literacy and possible consumer issues.
To this end, through reviewing and comparing GDPR and revisioned personal privacy protection law, the elements of profiling as well as specific characteristics to guarantee privacy protection were discovered. Also, with reviewing privacy policies and related services of 10 leading domestic and international companies which utilizes profiling technology, the defects of domestic companies were investigated. Specifically, the issues were articulated in the five sectors such as 1) type of protected personal information 2) method of consent to the collection of information generated and behavior, 3) method of notifying the purpose of profiling, 4) notification of inferred information, finally 5) method of providing permission to view and delete profiling information. Based on the analysis results, we analyzed how domestic companies' terms and conditions and service provision method should be improved. In addition, I tried to give implication to the government and related policy organizations should make efforts to pursue privacy by design in order to improve the level of personal information protection of consumers who use the services of domestic companies.

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저자 : 박세환 ( Sehwan Park )

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초록보기

Au titre d'abus d'exploitation, l'Autorité de la concurrence a sanctionné Google pour d'avoir abusé sa position dominante en adoptant des règles de fonctionnement de sa plateforme publicitaire Google Ads vagues et difficilement compréhensibles et en les appliquant de manière aléatoire. Ensuite elle a ordonné à Google des mesures conservatoires à l'occasion de l'entrée en vigueur de la loi du 24 juillet 2019 sur les droits voisins. Selon elle, Google est susceptible d'avoir abusé de sa position dominante sur le marché des services de recherche généraliste en imposant des conditions de transactions inéquitables aux éditeurs et agences de presse. En vertu d'abus d'exploitation, elle a enjoint à Google de conduire des négociations de bonne foi avec les éditeurs de presse et l'AFP pour conclure des contrat de licence.
Quand même, il est contestable que les éléments subjectifs, par exemple le détournement de l'esprit d'une loi, suffisent à constituer un abus de position dominante. Par ailleurs, l'article L. 420-2 du Code de commerce prévoit que l'Autorité de la concurrence est obligée de démontrer les effets anticoncurrentiels pour la qualification d'abus. Pourtant, il est souhaitable de s'intéresser à ces décisions un peu audaces qui peuvent nous montrer les dispositions utiles et les problèmes difficiles en luttant contre l'abus de la plateforme numérique.

KCI등재

2온라인플랫폼 공정화법 제정안에 대한 검토

저자 : 이정란 ( Jeongran Lee )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 60-96 (37 pages)

다운로드

(기관인증 필요)

초록보기

The growth of the online market has led to the growth of IT startups and the development of related derivative industries; however, such growth has also brought about new problems such as: (i) issues relating to the reinforcement of the superior bargaining position of the online platforms, the center of the market growth, and (ii) issues relating to the emergence of unfair trade practices. More specifically, examples of such issues include the following acts by online platform businesses: unilaterally altering contractual terms and conditions or suspending its services; transferring the return costs to users; intentionally exposing the platform businesses' own products or its affiliates' products as the top search result; and providing certain business users “most-favored customer clauses.” In order to resolve such problems, the EU and Japanese governments have enacted laws and regulations to regulate activities relating to online platforms and the Korean government is also in the process of enacting laws and regulations for this purpose.
The reason for many countries to enact laws and regulations to regulate online platforms around the similar time would perhaps be due to the fact that the current laws and regulations in place are not sufficient to resolve the problems and issues arising from activities related to online platforms. The fact that online platforms are ever evolving in combination with various factors, however, is a reason for the new laws and regulations to be different in form from the current laws in place. This means that there should be a good balance between innovation and regulation.
In Korea, the new bill pending legislation is based on the current structure of the Korean laws regulating unfair trade practices. However, the new bill is notable in the fact that it places an emphasis on preventative regulatory measures in order to promote the transparency of commercial transactions, and that it newly provides for separate criteria to determine what is the “superior bargaining position” in a commercial transaction. In comparison to the similar laws of other jurisdictions, the new bill is similar to other countries' laws in that they emphasize the importance of preventative regulatory measures, but the new bill is also different in that it directly regulates unfair trade practices as well as sanctions for any violation.
In this article, Author suggests that, in order for the new bill on online platform law to have its regulatory feasibility, the required fields of a contract, to be published through a public notice , should be limited to an appropriate extent and that specific standards should be provided for. In addition, Author further suggests that the concept of intermediary services should be interpreted with limitations in accordance with the purpose of the new bill. Last but not least, Author particularly proposes that the market should voluntarily change since the new bill has provided for a policy giving direction on the regulation of online markets.

KCI등재

3온라인 플랫폼 사업자의 이용약관에 대한 경쟁법적 규제 - 독일 Facebook 사건의 시사점을 중심으로 -

저자 : 조혜신 ( Hye-shin Cho ) , 강보선 ( Bo-seon Kang )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 97-130 (34 pages)

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In regulating abuse of dominance cases concerning online platforms under competition law, exploitative abuse should be the main focus in light of the practices that violate the interests of platform users by platform undertakings. The exploitative practices of online platforms include excessive pricing or imposition of any terms and conditions on users. In particular, considering that major online platforms are generally dominant undertakings in the relevant market, prohibition of abuse undermining consumer interests stipulated in Article 3-2 (1) of the Monopoly Regulation and Fair Trade Act may have significant implications. In this sense, the German Facebook case could provide important implications.
Due to the complexity and opacity which arise from the contract made by online platforms, consumers in online platforms are not only structurally inferior to information or to bargaining power, but they are also in a situation where there is not effective competition due to the presence of dominant undertakings in the relevant market. It would be difficult for consumers to refuse to enter into contracts with dominant undertakings and have opportunities to enter into contracts with other undertakings. Under these dual constraints, the purpose of the latter part of paragraph 5 in Article 3-2 of the Korean Competition Law is to protect consumers whose interests are likely to be infringed directly. Furthermore, this would require a broader interpretation of the concept of consumer interests. The reference for this concept of consumer interests could be the 'self-determination' that is the premise of freedom of contract, and the basic rights of consumers under the Framework Act on Consumers. In particular, factors that violate consumer self-determination include constraints on the possibility of alternative choices, restrictions on accessing the information on which choices are based, or imposition of disadvantages terms and conditions of contract, which are the main reasons for undermining consumer interests.

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4조건부(충성)할인과 시장지배력 남용 문제에 대한 고찰 - 대법원 2019. 1. 31. 선고 2013두14726 판결을 중심으로 -

저자 : 주진열 ( Ju Jinyul )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 133-173 (41 pages)

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In 2019, a chamber of the Supreme Court of Korea decicded that Qualcomm's conditional discountsoffered to Korean cell phone makers amounted to anticompetitive exclusive dealing for the reasons that the discounts in question caused exclusive or foreclosure effect. This decision is not consistent with the effects-based approach and the rule of reason adopted by the 2007 POSCO full bench decision. First of all, the discounts in question were nothing more than pricing. Second, exclusive effect can not be the same as anticompetitive effect because fair competition also causes exclusive effect. Therefore, exclusive effect cannot distinguish anticompetitive conducts with competitive conducts. That's why the POSCO full bench adopted the effects-based approach and the rule of reason in 2007. According to the POSCO jurisprudence, courts cannot condemm conditional discounts when the KFTC fails to prove anticompetitive effect. The KFTC had never proved anticompetitive effect of the discounts in question. The Qualcomm chamber made an error by failing to follow the effects-based approach of the 2007 POSCO full bench decision.

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5웹 크롤링의 경쟁법적 고찰

저자 : 황태희 ( Tae Hi Hwang )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 174-208 (35 pages)

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The purpose of the Competition Law is to enhance consumer welfare through free and fair competition in the market. In particular, the nature of search-based services in a data-driven economy requires data to be constantly shared, communicated, and analyzed in the marketplace. The Web crawling, which uses information collection robots to collect necessary information from other websites, is becoming common in the trading world as a new way of collecting the necessary information directly among the numerous information posted on the Internet. Web crawling is an essential act of gathering information in such search-based services, not in itself to limit the operations of others. It is a consumer-friendly mechanism that promotes price and quality competition for products or services and increases consumers' choice because it can quickly and accurately provide the desired search results, product information, photos, and reviews.
Thus, unfair restricting web crawling could impede consumer interests and also create obstruction of business activities for counterparts and competitors. It would be necessary to prevent large online operators from monopolizing information or distorting competition so that various information can be provided to consumers. As to whether it is illegal to crawl copyrighted content or databases, it will be necessary to determine whether crawling is consistent with the fair use of copyright. And if collecting information through crawling helps consumers expand their options and promote their welfare, it is necessary to avoid hastily judging them as violations of the law. The most important thing in the data-driven economy is that operators can compete fairly and that consumers should benefit from competition and innovation, which should not be overlooked in the legal judgment of crawling.

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6공정거래법상 거래금액기반 기업결합 신고기준 도입의 의미

저자 : 심재한 ( Sim Jae Han )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 209-232 (24 pages)

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Article 11 (2) of the revised Korea Antimonopoly and Fair Trade Act, which takes effect from December 30, 2021, introduced the thresholds based notification standards for merger control as follows. ① The total amount of the value paid or invested in return for a merger must be equal to or greater than the amount prescribed by Presidential Decree. ② The merged company shall operate at a considerable level as prescribed by Presidential Decree in Korea. According to the revised law, even if other companies' assets or sales fall short of KRW 30 billion, the amount of transactions is more than a certain standard, and if they operate at a significant level in the domestic market, they will be obliged to notify. German Competition Act (GWB) and the Austrian Cartel and Competition Law Amendment Act 2017 (KaWeRÄG) introduced a system based on the consideration of the opposing payments paid for merger to reduce defects in the regulation. Section 35 (1a) GWB and Section 9 (4) of the Austrian Cartel Act 2005 (KartG) close a gap in the system of merger control so that it is able to perform its function to the fullest extent in an increasingly dynamic economic environment. The practical problem with the introduction of the transaction amount-based merger notification standard under the Korea Antimonopoly and Fair Trade Act is how much the transaction amount, which is the notification standard, will be set. In this paper, the implications of the introduction of the transaction amount-based merger notification system in Korea will be examined.

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7기업집단의 동일인 확정에 관한 검토

저자 : 서정 ( Jeong Seo )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 233-259 (27 pages)

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The determination of the same person has an important normative significance. The scope of the enterprise group(business group) and whether it is a regulated large business group depends on who is determined as the same person in the business group. In the meantime, each business group has decided on the same person through the so-called internal agreement among members of a controlling family and submitted it to the Fair Trade Commission(FTC), and the FTC has determined the same person based on these data. It is believed that the FTC's practices on the determination of the same person have not deviated significantly from the socio-economic perception of the general public. However, in recent years, in the process of succession of management from generation to generation, the share of ownership of the controlling family continues to dilute, disputes over management among these family members increase, and corporate groups with ownership and governance structures different from those of conventional chaebols have appeared. There are many changes in the environment surrounding the confirmation of the same person.
The FTC can exercise its discretion in determining a specific company or a specific person as the same person among a number of candidates based on data collected legally. In exercising such discretion, the decision should be checked once again by fully reflecting the legislative purpose of the Monopoly Regulation and Fair Trade Act(MRFTA), maintaining objective fairness, and sufficiently presenting the data to assess the legality of the decision. Considering the widespread effect of the designation of a business group, the designation should be made in an objective, transparent, and predictable manner as much as possible, so the determination of the same person should be, in principle, based on a quantitative 'equity ratio' standard. However, in exceptional cases where it is difficult to uniquely determine the same person based on the equity ratio alone, or if the 'equity ratio' standard is far from economic reality or social perception, it would be desirable to determine the same person in consideration of qualitative 'control' standard.
Specifically, if there are multiple candidates for the same person, such as a person who exerts a dominant influence on the management of the company other than an unconscious stakeholder, the FTC will ultimately select the person who meets the legislative purpose of the corporate group regulation system. On the other hand, there is a concern that the socioeconomic realities of the corporate group's governance relationship may not be properly reflected when the 'equity ratio' standard is mechanically applied to a business group in dispute over management. In addition, in the case of companies in which the National Pension Service or other funds occupy the largest shareholder position with around 10% equity, a more cautious approach is needed to determine a person with minority interests as the same person. It would be desirable for the FTC to present criteria that stipulate more specific principles and procedures for the determination of the same person. In the long term, it is necessary to consider the method of separating the reference point of the business group from the regulated groups of people to prevent tunneling in large corporate groups.

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8상당한 규모의 거래를 이용한 특수관계인에 대한 이익제공행위의 판단 기준

저자 : 정재훈 ( Jae Hun Jeong )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 260-296 (37 pages)

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Section 23-2 of the Korean antitrust law (the Monopoly Regulation and Fair Trade Act), a provision that prohibits specially related persons from raking in unfair advantages, was enacted to limit the private interests of family members of conglomerate presidents. This provision stipulates four types of conduct including tunneling in corporate law. However, the clause has semantic ambiguities that leave open the interpretation of its objects, scope, and application to specific cases.
Since the new clause was put into effect, Korean Fair Trade Commission (hereafter “KFTC”) has mainly enforced against the violation of subparagraph 1 type, conducting transactions under terms that are substantially favorable to the terms that have been applied or judged to be applicable to normal transactions. Recently, KFTC has been actively investigating and sanctioning against the violation of subparagraph 4 types, conducting transactions without reasonably considering factors like transaction parties' business ability, financial status, credit rating, technical skills, price, terms of the contract, or without comparing these factors against those of other enterprises.
However, short of any precedents, applying subparagraph 4 of section 23-2 remains a challenge. This article reviewed legal issues and suggested a proper way to construe the phrase of reasonable consideration, substantial size, and unfair profits.
First, lack of reasonable consideration is a necessary condition for a transaction to be considered a violation of the given clause. The term reasonable consideration is an abstract and open notion encompassing business ability, financial status, credit rating, technical skills, price, and terms of the contract. The act of comparing these factors with those of other enterprisers is typically seen as conforming to the reasonable consideration requirement. The Presidential Decree additionally requires relevant transactions to conform to a proper selection process. Yet, any company that belongs to an enterprise group can evade the stricture, not only regarding reasonable consideration but also with the proper selection process. In addition, reasonable consideration is not confined to procedural standards. Thus, given that a reasonable and substantial transaction was made, even if the procedural requirements are not fully met, a transaction can be seen as satisfying the reasonable consideration prerequisite.
By extension, transactions should meet the substantial size requirement before it is considered a violation of the clause. However, what qualifies as a substantial size is hard to measure or fix. Relevant markets, a devolving entity's turnover, the other party's turnover, and competitors should be comprehensively considered to establish a variety of standards to guide the court.
In the future, courts should specify the standard and scope of reasonable consideration, substantial size, and unfair profits that will play a key role in deciding what qualifies as a violation and the strength of evidence. Once these principles are established, the legislator's intent to prevent specially related persons from gaining unfair advantages would be better reflected in the enforcement of the law. Consistently enforcing these rules will enhance the predictability of the application, and in turn, guide business entities better.

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9국내외 개인정보보호정책의 비교분석을 통한 프로파일링 관련 소비자 이슈의 고찰과 적용

저자 : 양수진 ( Su Jin Yang )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 43권 0호 발행 연도 : 2021 페이지 : pp. 297-321 (25 pages)

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With the passage of the revision bill of the 'Data 3 Act' aimed at the development of domestic companies in the recent 4th industrial revolution, research on the rights and interests of individual consumers who provide personal information at the same time needs to be expanded. Therefore, this study was to define profiling by comparing the GDPR and the revised Personal Information Protection Act, and to analyze the privacy policies and conditions of major domestic and global IT companies based on consumer privacy literacy and possible consumer issues.
To this end, through reviewing and comparing GDPR and revisioned personal privacy protection law, the elements of profiling as well as specific characteristics to guarantee privacy protection were discovered. Also, with reviewing privacy policies and related services of 10 leading domestic and international companies which utilizes profiling technology, the defects of domestic companies were investigated. Specifically, the issues were articulated in the five sectors such as 1) type of protected personal information 2) method of consent to the collection of information generated and behavior, 3) method of notifying the purpose of profiling, 4) notification of inferred information, finally 5) method of providing permission to view and delete profiling information. Based on the analysis results, we analyzed how domestic companies' terms and conditions and service provision method should be improved. In addition, I tried to give implication to the government and related policy organizations should make efforts to pursue privacy by design in order to improve the level of personal information protection of consumers who use the services of domestic companies.

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