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한국경쟁법학회> 경쟁법연구> 상당한 규모의 거래를 이용한 특수관계인에 대한 이익제공행위의 판단 기준

KCI등재

상당한 규모의 거래를 이용한 특수관계인에 대한 이익제공행위의 판단 기준

Legal issues on providing unfair advantage to specially related persons through transaction of substantial size

정재훈 ( Jae Hun Jeong )
  • : 한국경쟁법학회
  • : 경쟁법연구 43권0호
  • : 연속간행물
  • : 2021년 05월
  • : 260-296(37pages)
경쟁법연구

DOI


목차

Ⅰ. 서 론
Ⅱ. 주체 및 객체 요건
Ⅲ. 합리성 요건
Ⅳ. 상당한 규모 요건
V. 부당한 이익 요건
Ⅵ. 결 론
참고문헌

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초록 보기

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.

UCI(KEPA)

I410-ECN-0102-2022-300-000693793

간행물정보

  • : 사회과학분야  > 법학
  • : KCI등재
  • :
  • : 반년간
  • : 1598-2335
  • : 2671-6402
  • : 학술지
  • : 연속간행물
  • : 1989-2022
  • : 517


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KCI등재

1온라인 플랫폼에 대한 중복규제 방지 방안

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

22021년 공정거래 주요 판례 회고

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

3표준필수특허 보유자의 사업모델에 대한 공정거래법의 적용 - 퀄컴 Ⅱ 사건에 대한 서울고등법원 판결 분석 -

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

4시장지배적 사업자의 후속시장 차별취급 행위에 대한 경쟁법적 고찰

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

5온라인 플랫폼 사업자가 보유하는 데이터 관련 시장지배력 판단

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

6빅데이터/인공지능을 이용한 이윤극대화 가격차별과 독점규제법

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

7독점규제법 제25조 제1항의 의결권제한의 대상이 되는 금융회사의 범위

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

8공정거래법상 브랜드 가치 보호의 한계에 관한 연구 - 선별적 유통시스템을 중심으로 -

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

9독점규제법상 불공정거래행위에 대한 금지청구 - 단체소송에 의한 금지청구 입법론을 중심으로 -

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

10공정거래법상 동의의결 절차에 있어서 '이행관리제도'의 체계상 지위와 실효적 운영을 위한 보완 방안

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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저자 : 박세환 ( Sehwan Park )

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

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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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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.

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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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