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한국경쟁법학회> 경쟁법연구> 약탈적 가격인하와 가격(이윤)압착 문제에 대한 고찰 - 기업메시징서비스 사건(대법원 2021. 6. 30. 선고 2018두37700 판결)을 중심으로 -

KCI등재

약탈적 가격인하와 가격(이윤)압착 문제에 대한 고찰 - 기업메시징서비스 사건(대법원 2021. 6. 30. 선고 2018두37700 판결)을 중심으로 -

Predatory Price Cutting and Price(Margin) Squeeze in Korean Competition Law: A Critique on the Korean Supreme Court Decisions 2018Du37700 and 2018Du37980 (June 30, 2021)

주진열 ( Ju Jinyul )
  • : 한국경쟁법학회
  • : 경쟁법연구 44권0호
  • : 연속간행물
  • : 2021년 11월
  • : 125-176(52pages)
경쟁법연구

DOI


목차

Ⅰ. 서 론
Ⅱ. 기업메시징서비스 시장과 시장지배력 문제
Ⅲ. 가격에 의한 경쟁자배제 남용과 가격(이윤)압착 문제
Ⅳ. 기업메시징서비스 사건에서 경쟁제한성 판단기준 문제
Ⅴ. 결 론
참고문헌

키워드 보기


초록 보기

In 2015 the Korean Fair Trade Commission (FTC) charged that both LGU+ and KT, as a vertically integrated telecommunication firm, had separately and unduly set each of theirs prices below the so-called ‘normal trading price (NTP)’ termed in the Korean Monopoly Regulation and Fair Trade Act Decree (MRFTAD) to exclude rivals in the business text messaging service (BTMS) market. It was clear that the issue was about predatory price cutting rather than a price or margin squeeze. In June 2021, neverthless, the Supreme Court of Korea erroneously framed the two cases as a margin squeeze in both FTC v. LGU+ and FCT v. KT by manipulating ‘pricing below NTP’ as a margin squeeze. The Court should have interpreted NTP as a properly estimated cost in the context of predatory price cutting. The Court’s two decisions are neither understandable nor explainable. Even suppose that the two cases were about a margin squeeze, the Court should have addressed the antitust duty to deal. As neither LGU+ nor KT bear that kind of duty, the Court should have required the KFTC to prove the existence of predatory price cutting by LGU+ and KT.

UCI(KEPA)

I410-ECN-0102-2022-300-000971992

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  • : KCI등재
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  • : 1598-2335
  • : 2671-6402
  • : 학술지
  • : 연속간행물
  • : 1989-2021
  • : 503


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KCI등재

1정보교환 담합행위 규율의 변화와 쟁점

저자 : 최난설헌 ( Nansulhun Choi )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 3-26 (24 pages)

다운로드

(기관인증 필요)

초록보기

The overall revision of the Monopoly Regulation and Fair Trade Act (MRFTA) in Korea was passed at the National Assembly plenary session on December 9, 2020, and will be implemented from December 30, 2021. This overall revision is the first in 40 years since the MRFTA was enacted and enforced in 1980. Subordinate statutes such as the enforcement decree of the act on the MRFTA and the public notice are still in the process of being prepared. In addition, as the subordinate statutes are coded, systematized, and enforced, whether the expectations and concerns of the overall revision that have been expressed will eventually be revealed.
'Information exchange' is not stipulated as a type of unfair cartel in Article 19, Paragraph 1 under the current MRFTA. Before the overall revision of the MRFTA, there was a limitation in that the Korea Fair Trade Commission (KFTC) had no choice but to dismiss the charges because there was no legal basis for doing so. Also, the court's attitude was generally strict in recognizing an agreement of information exchange. In this regard, the KFTC took into account that information exchange is currently taking place as a form of collusion, and that in the case of significant jurisdictions such as the EU and the United States, a system is in place to regulate information exchange as a type of collusion or cartel. To clarify the legal basis for regulating information exchange, the amendment of the law was pursued in Korea. However, there are conflicting views and prospects for changes in the information exchange discipline, including concerns that the pro-competitive effect of these amendments to the law may lead to overregulation of the daily information exchange of business operators.
Even if there is no agreement, it is a well-known fact that information exchange may cause concerted practices, such as reducing price deviations by allowing operators to establish interdependent management strategies. Of course, it is necessary to be aware of the side effects of the potential overregulation, which prevents the exchange of information with pro-competitive effects after the enforcement of the law. It should be possible to effectively control anti-competitive behavior while minimizing the negative impact on the market.

KCI등재

2공정거래위원회의 최근 하도급법 위반 심결례 회고 - 조선업에서의 부당한 하도급대금 결정 사례를 중심으로 -

저자 : 윤신승 ( Yun Sinsung )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 27-65 (39 pages)

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초록보기

Daewoo Shipbuilding &Marine Engineering Case (2013) is a case where the act of unilaterally applying the “productivity improvement rate” and calculating the number of hours lower than the actual consignment content, while Daewoo Shipbuilding &Marine Engineering Case (2019) is a case where the act of lowering the subcontract price by applying the “efficiency rate” of the revised additional work lower than the “efficiency rate' of the main construction (the ratio of the actual input time). In addition, the Korea Shipbuilding &Marine Engineering Case (2020), Samsung Heavy Industries Case (2020), and Daewoo Shipbuilding &Marine Engineering Case (2021), which were handled by the Fair Trade Commission (“FTC”), are problematic cases in which the actual input was excessively reduced and the subcontract price was lower than the manufacturing cost. In all of the above cases, the essence of the act can be said to be the randomness, opacity, and excessive reduction of the calculation of the number of hours applied to the calculation of the actual subcontracting price. However, since the “time-value” contract itself is difficult to see as a contract that compensates for the actual working hours invested (the time required for "work completion" may vary depending on the worker's skill level), it is difficult to say that the “time-value” is illegal or unfair just because there is a gap with the actual input time of the contractor.
Considering the transactional status of the principal contractor, the “time-value“ contract may be said to be a contract method with room for abuse by the principal contractor. However, in the process of applying Article 4 (2) 5 of the Fair Transactions in Subcontracting Act (“Act“) to attempts by the principal contractor to lower subcontract payments using the framework of the “time-value“ contract, it is difficult to find a benchmark, which is the standard for 'low unit price'. This provision is a non-rebuttable presumption clause to facilitate proof of Article 4, Paragraph 1 of the Act, but in reality, it does not function as such. According to Daewoo Shipbuilding &Marine Engineering's ruling, even if the market price is unilaterally calculated in favor of the original operator, it must be proved that the resulting "subcontract price" is lower than "general price" in the shipbuilding industry. This difficulty seems to have led the FTC to adopt a method of comparing subcontracting payments with "manufacturing prices" in the Korea Shipbuilding &Marine Engineering Incident (2020), and it will be necessary to see if the legal grounds can be resolved. The progress of administrative litigation should be followed, but as a solution to the above problems, it may be possible to think of amending Article 4 (2) 5 (or 1) of the Act (e.g. one of the specific measures might be deleting "at a uniform rate" in Article 4 (2) 1 of the Act and amend it to be read "decide on subcontracting without justifiable reasons"). For example, under the Monopoly Regulation and Fair Trade Act, it is possible to consider approaching the problem of exploitation and abuse of demand-dominant enterprises, or applying sector-specific regulations based upon the point of view that the problems associated with the “time-value“ contract are sector-specific problems happening in the shipbuilding industry.

KCI등재

32020년 공정거래법 전부개정의 절차법적 검토 - 공정위 심의절차를 중심으로 -

저자 : 박준영 ( Joon Young Park )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 66-97 (32 pages)

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초록보기

Bei dieser Studie geht es um die verfahrensrechtliche Revision des koreanisches Kartellrechts 2020 - eine vollständige Änderung des Korean Fair Trade Act. Obwohl diese Revision als eine Befruchtung, was die Kartellbehörde, akademische Kreise, und Geschäftspraxis zusammen erreicht hat, und hierdurch als eine institutionelle Basis für die Fair Economy und Reform in Korea erfassen werden kann, soll es im historischen und rechtstheoretischen Sicht sorgfältig und weitläufig nachgeprüft werden. Dafür wird bei dieser Studie der Ablauf und die Meinung des Vorschriftsveränderung vom verfahrensrechtlichen Standpunkt untersucht, und danach eine rechtstheoretische Analyse des konkreten Inhalts, insbesondere die System der Beweiserhebung und die Reform des Akteneinsichts durchgeführt.
Zum Abschluss soll folgende Punkte betont sein; erstens, eine intensive und rechtstheoretische Studie über die Beweistheorie im koreanischen Kartellverfahren ist nötig; zweitens, das Bedürfnis eines selbstständiges Gesetz des Kartell-verfahrensrechts soll übergelegt sein; letztens, die Verbesserung des Kartellverfahren kann als ein Beitrag beim Problemlösung im kartellrechtliches Streitpunkts von Online-Platforms bzw. Digitalökonomie funktionieren.

KCI등재

4공정거래법제에 있어서의 동의의결 활성화 방안

저자 : 황태희 ( Tae Hi Hwang )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 98-121 (24 pages)

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(기관인증 필요)

초록보기

The system in which a suspected undertaking under investigation or deliberation voluntarily suggests to the KFTC a corrective plan before receiving sanctions after MRFTA and the KFTC closes the case when it accepts such voluntary measure. It is called the consent decision system. The consent decision has some advantages such as securing rapid means of public execution and the efficiency of resource allocation through flexibility in implementing the law.
Therefore, it is necessary to make to close cases by means of consents, especially cases of M&A with corrective conditions, cases where market definition or relevant sales calculation are technically difficult, cases where victims are SME, and subcontract payment. To do this, first of all, it is necessary to overcome the view that consent decision is an unfair indulgence by the KFTC. In addition, the process of collecting opinions against voluntary corrective measures from stakeholders should be regarded seriously so that the consent decision reflecting various opinions can be constructed.
Moreover, efforts are needed to specify control measures for consent decisions. In particular, it is necessary to reflect on whether the establishment of damage relief funds and foundations played a practical role despite being an important means of relieving damage to a small number of consumers, and it will be important to supplement future performance management procedures and controls for inappropriate performance. Fortunately, the procedure for managing the implementation of consent decisions was introduced by legislation last year. I hope it works better.

KCI등재

5약탈적 가격인하와 가격(이윤)압착 문제에 대한 고찰 - 기업메시징서비스 사건(대법원 2021. 6. 30. 선고 2018두37700 판결)을 중심으로 -

저자 : 주진열 ( Ju Jinyul )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 125-176 (52 pages)

다운로드

(기관인증 필요)

초록보기

In 2015 the Korean Fair Trade Commission (FTC) charged that both LGU+ and KT, as a vertically integrated telecommunication firm, had separately and unduly set each of theirs prices below the so-called 'normal trading price (NTP)' termed in the Korean Monopoly Regulation and Fair Trade Act Decree (MRFTAD) to exclude rivals in the business text messaging service (BTMS) market. It was clear that the issue was about predatory price cutting rather than a price or margin squeeze. In June 2021, neverthless, the Supreme Court of Korea erroneously framed the two cases as a margin squeeze in both FTC v. LGU+ and FCT v. KT by manipulating 'pricing below NTP' as a margin squeeze. The Court should have interpreted NTP as a properly estimated cost in the context of predatory price cutting. The Court's two decisions are neither understandable nor explainable. Even suppose that the two cases were about a margin squeeze, the Court should have addressed the antitust duty to deal. As neither LGU+ nor KT bear that kind of duty, the Court should have required the KFTC to prove the existence of predatory price cutting by LGU+ and KT.

KCI등재

6온라인 플랫폼 사업자의 자사우대에 대한 경쟁법상 허용 범위의 한계 - 네이버쇼핑 사건과 EU Google Shopping 사건, 영국 Streetmap 사건을 중심으로 -

저자 : 강지원 ( Jiwon Kang ) , 임지영 ( Jiyoung Lim )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 177-223 (47 pages)

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초록보기

“Self-preferencing” by vertically-integrated online platforms(“VOPs”) currently comes under fierce scrutiny by competition authorities around the world. In a digital ecosystem, these VOPs assume a dual role both as a “rule maker” with their power to design search algorithms and at the same time as a “player” in downstream markets. While VOPs' incentive for favorable treatment of their own goods/services over competitors is arguably an inherent element in platform businesses, their rulemaking power would certainly not be without limitation under competition law regimes.
The KFTC's recent Naver Shopping decision on self-preferencing left the Korean antitrust community with more questions than answers in at least three aspects. In the first place, statutory interpretation on whether Naver Shopping's favoring of its affiliate constitutes any subcategory of abuse of dominance under the Monopoly Regulation and Fair Trade Act(“MRFTA”) is, to some extent, unclear. Furthermore, KFTC's product market definition excluding online marketplaces is likely an issue to be revisited at the appellate stage, given that it arguably failed to shed light on the importance of actual consumer behaviors as well as a recent trend in multi-platform convergence. Last but not least, KFTC's attempt to incorporate the much-debated leveraging theory into the framework of the Posco doctrine established by the Supreme Court will likely be challenged at the litigation.
Self-preferencing cases in different jurisdictions such as European Commission's Google Shopping decision and UK Streetmap case share both factual circumstances(modifying an algorithm at issue) and legal analysis(leveraging theory applied) in common with the Naver Shopping case. What makes the KFTC case distinguished from the two European cases, however, would be its giving weight to the subjective element(anticompetitive intent) of the abuse-a mandate from the Supreme Court's Posco precedent. Not surprisingly, an online platform can have the mixed intent of promoting consumer welfare and convenience in upstream general search services and putting its own goods/services at competitive edge in downstream markets at the same time. A comparative law insight from the UK Streetmap case tells us that when anticompetitive effects of the platform's self-prefencing are far from being clear-cut, a multi-layered intent of the platform can step into the analysis to resolve a close case. When it comes to anticompetitive effect, some key external factors (e.g. quality improvement in search services, changing patterns in user preference, etc.) should be integrated into the analytic process of demonstrating causality between self-preferencing and diversion of user traffic.

KCI등재

7동일인 지정제도와 자기주식의 취득, 보유 및 처분 - 정성적 기준을 중심으로 -

저자 : 강상엽 ( Sang Yop Kang )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 224-256 (33 pages)

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(기관인증 필요)

초록보기

Even if a person in a corporate group in Korea is not designated as 'the same person' according to the quantitative criteria, the Korea Fair Trade Commission (KFTC) may designate the same person based on the qualitative criteria concerning 'treasury stock.' Since many corporate groups in Korea have acquired and held treasury stock, this issue is crucial in relation to the designation of the same person. Still, there is hardly any detailed explanation by the regulatory agency (KFTC) or discussion in the Fair-Trade-Law related practice circles and academia. Treasury stock can be abused as a tool to defend a controlling shareholder's control over a corporate group. On the other hand, it should be noted that treasury stock is one of a few takeover defense devices allowed under the Korean legal system. Treasury stock also has its corporate finance functions, such as returning the company's free cash flows to the shareholders. In addition, when applying the qualitative criteria for designation of the same person, the KFTC should distinguish between the situation in which treasury shares have been 'already' transferred to a friendly third party, and the situation where there is merely a 'possibility' of being transferred but not currently transferred. Since treasury stock is a common phenomenon in the corporate world and the capital market, various discussions on the acquisition, holding, and disposal of treasury stock are expected in the near future with respect to the same person designation system and related regulations. The Author hopes that this paper will contribute to establishing more specific and systematic guidelines for the KFTC regarding treasury stock when designating the same person.

KCI등재

8공정거래위원회의 현장조사의 법적 성질과 한계에 대한 실무적 고찰

저자 : 신사도 ( Sado Shin ) , 김영석 ( Youngseok Kim )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 257-321 (65 pages)

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(기관인증 필요)

초록보기

Although dawn raids have become a primary investigation tool of the Korea Fair Trade Commission (“KFTC”), there still remain uncertainties over their legal nature as well as their workings and limitations when employed in practice. Against this backdrop, this study aims to define the legal nature of the KFTC's dawn raids and their procedures and limitations from the perspective of a legal professional.
First, KFTC's investigations, including dawn raids are an administrative procedure that should governed by different rules from those for criminal investigation. Second, a voluntary consent by a company under investigation should be a prerequisite for the KFTC's investigation whichout which an investigation cannot be initiated. Next, a decision of the KFTC to initiate a dawn raid should be a matter contestable through an administrative litigation. Lastly, the KFTC's dawn raids should strictly comply with an applicable due process.
In light of the foregoing, this study proposes that the KFTC's dawn raids should abide by the following procedures given their legal nature. First, the KFTC should specify the purpose and scope of the investigation in an official inspection notice that is presented to the investigated company at the beginning of a dawn raid. Second, the right to counsel and attorney-client privilege should be protected throughout the investigation to ensure due process of law. Moreover, this study discusses specific ways to inspect materials of the company and o get voluntary consent.
To summarize, this study analyzes the legal nature of the KFTC's investigation and recommends procedural improvements for dawn raids, which are expected to contribute to elaborating legal standards for the KFTC's investigation and preventing disputes that may arise from a regulatory gap.

KCI등재

9영국 경쟁법상 시장지배적 지위남용규제의 최근 동향 - 온라인 행태 광고를 중심으로 -

저자 : 최요섭 ( Yo Sop Choi )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 322-352 (31 pages)

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(기관인증 필요)

초록보기

Before Brexit, the UK could manage the national market competition under the implementation of EU competition law. At the same time, the UK competition regime contributed to the modernisation of EU competition law, which is the shift from the form-based approach to the effects-based approach. Since the UK left the EU, the UK Competition and Markets Authority (CMA) has shown its efforts to develop its competition law and policy on the digital economy, which indicates its independence from the EU competition regime. In particular, the CMA has published a number of reports of market study, including 'Online platforms and digital advertising' in July 2020. Moreover, the CMA has opened an investigation into Google's Privacy Sandbox that has the proposals to remove third party cookies and other functionalities from Google's Chrome browser. In effect, the European Commission also announced its investigation on the similar case. Therefore, it is meaningful to discuss the CMA's approach to the digital advertising, which will be useful when we compare it with the EU's approach. Then, it would be possible to find a level of convergence between the UK and the EU in competition law enforcements in the digital sector.
In particular, the recent discussions on the business models in the ad tech become important. Since the German Facebook case, critics have asserted that the infringement of privacy should be regarded as an exploitative abuse. On the contrary, Google's Privacy Sandbox plan aims to protect privacy (i.e., to avoid any possible exploitative abuse or data protection rule), but competition authorities, including the CMA, consider this privacy protection policy as an exclusionary abuse. In effect, Privacy Sandbox may be necessary from data protection regulation perspectives. The application of competition law to Privacy Sandbox may conflict with the rule of data protection law. In sum, there are notably complex conflicts and overlaps between the objectives of an exploitative abuse rule and an exclusionary abuse rule and between competition law and data protection law. This can be regarded as a 'privacy protection paradox'. Moreover, the complicated framework in the ad tech of open display advertising market has brought discussions on the foreclosure by large gatekeepers in the vertically integrated structure. This issue involves the case of Privacy Sandbox.
Lastly, it is also important to discuss the future of UK competition regime. The concept of Ordoliberalism, which heavily affects the formalistic approaches in unilateral conducts, continues to influence the development of EU competition law and policy. The idea of social market economy, relating to Ordoliberalism, is clarified in Article 3 of the Treaty on the European Union as an important value and goal of the EU. However, the UK does not have to accept these notions in the implementation of competition rules as the regime left the EU. Whether the UK competition regime continues to accept the concept of special responsibility that is from Ordoliberalism and social market economy will be one of the important topics after Brexit. This article aims to discuss the CMA's recent approaches to the digital advertising sector, focusing on the Privacy Sandbox, thereby forecast further developments of the UK competition regime.

1
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KCI등재

1정보교환 담합행위 규율의 변화와 쟁점

저자 : 최난설헌 ( Nansulhun Choi )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 3-26 (24 pages)

다운로드

(기관인증 필요)

초록보기

The overall revision of the Monopoly Regulation and Fair Trade Act (MRFTA) in Korea was passed at the National Assembly plenary session on December 9, 2020, and will be implemented from December 30, 2021. This overall revision is the first in 40 years since the MRFTA was enacted and enforced in 1980. Subordinate statutes such as the enforcement decree of the act on the MRFTA and the public notice are still in the process of being prepared. In addition, as the subordinate statutes are coded, systematized, and enforced, whether the expectations and concerns of the overall revision that have been expressed will eventually be revealed.
'Information exchange' is not stipulated as a type of unfair cartel in Article 19, Paragraph 1 under the current MRFTA. Before the overall revision of the MRFTA, there was a limitation in that the Korea Fair Trade Commission (KFTC) had no choice but to dismiss the charges because there was no legal basis for doing so. Also, the court's attitude was generally strict in recognizing an agreement of information exchange. In this regard, the KFTC took into account that information exchange is currently taking place as a form of collusion, and that in the case of significant jurisdictions such as the EU and the United States, a system is in place to regulate information exchange as a type of collusion or cartel. To clarify the legal basis for regulating information exchange, the amendment of the law was pursued in Korea. However, there are conflicting views and prospects for changes in the information exchange discipline, including concerns that the pro-competitive effect of these amendments to the law may lead to overregulation of the daily information exchange of business operators.
Even if there is no agreement, it is a well-known fact that information exchange may cause concerted practices, such as reducing price deviations by allowing operators to establish interdependent management strategies. Of course, it is necessary to be aware of the side effects of the potential overregulation, which prevents the exchange of information with pro-competitive effects after the enforcement of the law. It should be possible to effectively control anti-competitive behavior while minimizing the negative impact on the market.

KCI등재

2공정거래위원회의 최근 하도급법 위반 심결례 회고 - 조선업에서의 부당한 하도급대금 결정 사례를 중심으로 -

저자 : 윤신승 ( Yun Sinsung )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 27-65 (39 pages)

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Daewoo Shipbuilding &Marine Engineering Case (2013) is a case where the act of unilaterally applying the “productivity improvement rate” and calculating the number of hours lower than the actual consignment content, while Daewoo Shipbuilding &Marine Engineering Case (2019) is a case where the act of lowering the subcontract price by applying the “efficiency rate” of the revised additional work lower than the “efficiency rate' of the main construction (the ratio of the actual input time). In addition, the Korea Shipbuilding &Marine Engineering Case (2020), Samsung Heavy Industries Case (2020), and Daewoo Shipbuilding &Marine Engineering Case (2021), which were handled by the Fair Trade Commission (“FTC”), are problematic cases in which the actual input was excessively reduced and the subcontract price was lower than the manufacturing cost. In all of the above cases, the essence of the act can be said to be the randomness, opacity, and excessive reduction of the calculation of the number of hours applied to the calculation of the actual subcontracting price. However, since the “time-value” contract itself is difficult to see as a contract that compensates for the actual working hours invested (the time required for "work completion" may vary depending on the worker's skill level), it is difficult to say that the “time-value” is illegal or unfair just because there is a gap with the actual input time of the contractor.
Considering the transactional status of the principal contractor, the “time-value“ contract may be said to be a contract method with room for abuse by the principal contractor. However, in the process of applying Article 4 (2) 5 of the Fair Transactions in Subcontracting Act (“Act“) to attempts by the principal contractor to lower subcontract payments using the framework of the “time-value“ contract, it is difficult to find a benchmark, which is the standard for 'low unit price'. This provision is a non-rebuttable presumption clause to facilitate proof of Article 4, Paragraph 1 of the Act, but in reality, it does not function as such. According to Daewoo Shipbuilding &Marine Engineering's ruling, even if the market price is unilaterally calculated in favor of the original operator, it must be proved that the resulting "subcontract price" is lower than "general price" in the shipbuilding industry. This difficulty seems to have led the FTC to adopt a method of comparing subcontracting payments with "manufacturing prices" in the Korea Shipbuilding &Marine Engineering Incident (2020), and it will be necessary to see if the legal grounds can be resolved. The progress of administrative litigation should be followed, but as a solution to the above problems, it may be possible to think of amending Article 4 (2) 5 (or 1) of the Act (e.g. one of the specific measures might be deleting "at a uniform rate" in Article 4 (2) 1 of the Act and amend it to be read "decide on subcontracting without justifiable reasons"). For example, under the Monopoly Regulation and Fair Trade Act, it is possible to consider approaching the problem of exploitation and abuse of demand-dominant enterprises, or applying sector-specific regulations based upon the point of view that the problems associated with the “time-value“ contract are sector-specific problems happening in the shipbuilding industry.

KCI등재

32020년 공정거래법 전부개정의 절차법적 검토 - 공정위 심의절차를 중심으로 -

저자 : 박준영 ( Joon Young Park )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 66-97 (32 pages)

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Bei dieser Studie geht es um die verfahrensrechtliche Revision des koreanisches Kartellrechts 2020 - eine vollständige Änderung des Korean Fair Trade Act. Obwohl diese Revision als eine Befruchtung, was die Kartellbehörde, akademische Kreise, und Geschäftspraxis zusammen erreicht hat, und hierdurch als eine institutionelle Basis für die Fair Economy und Reform in Korea erfassen werden kann, soll es im historischen und rechtstheoretischen Sicht sorgfältig und weitläufig nachgeprüft werden. Dafür wird bei dieser Studie der Ablauf und die Meinung des Vorschriftsveränderung vom verfahrensrechtlichen Standpunkt untersucht, und danach eine rechtstheoretische Analyse des konkreten Inhalts, insbesondere die System der Beweiserhebung und die Reform des Akteneinsichts durchgeführt.
Zum Abschluss soll folgende Punkte betont sein; erstens, eine intensive und rechtstheoretische Studie über die Beweistheorie im koreanischen Kartellverfahren ist nötig; zweitens, das Bedürfnis eines selbstständiges Gesetz des Kartell-verfahrensrechts soll übergelegt sein; letztens, die Verbesserung des Kartellverfahren kann als ein Beitrag beim Problemlösung im kartellrechtliches Streitpunkts von Online-Platforms bzw. Digitalökonomie funktionieren.

KCI등재

4공정거래법제에 있어서의 동의의결 활성화 방안

저자 : 황태희 ( Tae Hi Hwang )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 98-121 (24 pages)

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The system in which a suspected undertaking under investigation or deliberation voluntarily suggests to the KFTC a corrective plan before receiving sanctions after MRFTA and the KFTC closes the case when it accepts such voluntary measure. It is called the consent decision system. The consent decision has some advantages such as securing rapid means of public execution and the efficiency of resource allocation through flexibility in implementing the law.
Therefore, it is necessary to make to close cases by means of consents, especially cases of M&A with corrective conditions, cases where market definition or relevant sales calculation are technically difficult, cases where victims are SME, and subcontract payment. To do this, first of all, it is necessary to overcome the view that consent decision is an unfair indulgence by the KFTC. In addition, the process of collecting opinions against voluntary corrective measures from stakeholders should be regarded seriously so that the consent decision reflecting various opinions can be constructed.
Moreover, efforts are needed to specify control measures for consent decisions. In particular, it is necessary to reflect on whether the establishment of damage relief funds and foundations played a practical role despite being an important means of relieving damage to a small number of consumers, and it will be important to supplement future performance management procedures and controls for inappropriate performance. Fortunately, the procedure for managing the implementation of consent decisions was introduced by legislation last year. I hope it works better.

KCI등재

5약탈적 가격인하와 가격(이윤)압착 문제에 대한 고찰 - 기업메시징서비스 사건(대법원 2021. 6. 30. 선고 2018두37700 판결)을 중심으로 -

저자 : 주진열 ( Ju Jinyul )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 125-176 (52 pages)

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In 2015 the Korean Fair Trade Commission (FTC) charged that both LGU+ and KT, as a vertically integrated telecommunication firm, had separately and unduly set each of theirs prices below the so-called 'normal trading price (NTP)' termed in the Korean Monopoly Regulation and Fair Trade Act Decree (MRFTAD) to exclude rivals in the business text messaging service (BTMS) market. It was clear that the issue was about predatory price cutting rather than a price or margin squeeze. In June 2021, neverthless, the Supreme Court of Korea erroneously framed the two cases as a margin squeeze in both FTC v. LGU+ and FCT v. KT by manipulating 'pricing below NTP' as a margin squeeze. The Court should have interpreted NTP as a properly estimated cost in the context of predatory price cutting. The Court's two decisions are neither understandable nor explainable. Even suppose that the two cases were about a margin squeeze, the Court should have addressed the antitust duty to deal. As neither LGU+ nor KT bear that kind of duty, the Court should have required the KFTC to prove the existence of predatory price cutting by LGU+ and KT.

KCI등재

6온라인 플랫폼 사업자의 자사우대에 대한 경쟁법상 허용 범위의 한계 - 네이버쇼핑 사건과 EU Google Shopping 사건, 영국 Streetmap 사건을 중심으로 -

저자 : 강지원 ( Jiwon Kang ) , 임지영 ( Jiyoung Lim )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 177-223 (47 pages)

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“Self-preferencing” by vertically-integrated online platforms(“VOPs”) currently comes under fierce scrutiny by competition authorities around the world. In a digital ecosystem, these VOPs assume a dual role both as a “rule maker” with their power to design search algorithms and at the same time as a “player” in downstream markets. While VOPs' incentive for favorable treatment of their own goods/services over competitors is arguably an inherent element in platform businesses, their rulemaking power would certainly not be without limitation under competition law regimes.
The KFTC's recent Naver Shopping decision on self-preferencing left the Korean antitrust community with more questions than answers in at least three aspects. In the first place, statutory interpretation on whether Naver Shopping's favoring of its affiliate constitutes any subcategory of abuse of dominance under the Monopoly Regulation and Fair Trade Act(“MRFTA”) is, to some extent, unclear. Furthermore, KFTC's product market definition excluding online marketplaces is likely an issue to be revisited at the appellate stage, given that it arguably failed to shed light on the importance of actual consumer behaviors as well as a recent trend in multi-platform convergence. Last but not least, KFTC's attempt to incorporate the much-debated leveraging theory into the framework of the Posco doctrine established by the Supreme Court will likely be challenged at the litigation.
Self-preferencing cases in different jurisdictions such as European Commission's Google Shopping decision and UK Streetmap case share both factual circumstances(modifying an algorithm at issue) and legal analysis(leveraging theory applied) in common with the Naver Shopping case. What makes the KFTC case distinguished from the two European cases, however, would be its giving weight to the subjective element(anticompetitive intent) of the abuse-a mandate from the Supreme Court's Posco precedent. Not surprisingly, an online platform can have the mixed intent of promoting consumer welfare and convenience in upstream general search services and putting its own goods/services at competitive edge in downstream markets at the same time. A comparative law insight from the UK Streetmap case tells us that when anticompetitive effects of the platform's self-prefencing are far from being clear-cut, a multi-layered intent of the platform can step into the analysis to resolve a close case. When it comes to anticompetitive effect, some key external factors (e.g. quality improvement in search services, changing patterns in user preference, etc.) should be integrated into the analytic process of demonstrating causality between self-preferencing and diversion of user traffic.

KCI등재

7동일인 지정제도와 자기주식의 취득, 보유 및 처분 - 정성적 기준을 중심으로 -

저자 : 강상엽 ( Sang Yop Kang )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 224-256 (33 pages)

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Even if a person in a corporate group in Korea is not designated as 'the same person' according to the quantitative criteria, the Korea Fair Trade Commission (KFTC) may designate the same person based on the qualitative criteria concerning 'treasury stock.' Since many corporate groups in Korea have acquired and held treasury stock, this issue is crucial in relation to the designation of the same person. Still, there is hardly any detailed explanation by the regulatory agency (KFTC) or discussion in the Fair-Trade-Law related practice circles and academia. Treasury stock can be abused as a tool to defend a controlling shareholder's control over a corporate group. On the other hand, it should be noted that treasury stock is one of a few takeover defense devices allowed under the Korean legal system. Treasury stock also has its corporate finance functions, such as returning the company's free cash flows to the shareholders. In addition, when applying the qualitative criteria for designation of the same person, the KFTC should distinguish between the situation in which treasury shares have been 'already' transferred to a friendly third party, and the situation where there is merely a 'possibility' of being transferred but not currently transferred. Since treasury stock is a common phenomenon in the corporate world and the capital market, various discussions on the acquisition, holding, and disposal of treasury stock are expected in the near future with respect to the same person designation system and related regulations. The Author hopes that this paper will contribute to establishing more specific and systematic guidelines for the KFTC regarding treasury stock when designating the same person.

KCI등재

8공정거래위원회의 현장조사의 법적 성질과 한계에 대한 실무적 고찰

저자 : 신사도 ( Sado Shin ) , 김영석 ( Youngseok Kim )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 257-321 (65 pages)

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Although dawn raids have become a primary investigation tool of the Korea Fair Trade Commission (“KFTC”), there still remain uncertainties over their legal nature as well as their workings and limitations when employed in practice. Against this backdrop, this study aims to define the legal nature of the KFTC's dawn raids and their procedures and limitations from the perspective of a legal professional.
First, KFTC's investigations, including dawn raids are an administrative procedure that should governed by different rules from those for criminal investigation. Second, a voluntary consent by a company under investigation should be a prerequisite for the KFTC's investigation whichout which an investigation cannot be initiated. Next, a decision of the KFTC to initiate a dawn raid should be a matter contestable through an administrative litigation. Lastly, the KFTC's dawn raids should strictly comply with an applicable due process.
In light of the foregoing, this study proposes that the KFTC's dawn raids should abide by the following procedures given their legal nature. First, the KFTC should specify the purpose and scope of the investigation in an official inspection notice that is presented to the investigated company at the beginning of a dawn raid. Second, the right to counsel and attorney-client privilege should be protected throughout the investigation to ensure due process of law. Moreover, this study discusses specific ways to inspect materials of the company and o get voluntary consent.
To summarize, this study analyzes the legal nature of the KFTC's investigation and recommends procedural improvements for dawn raids, which are expected to contribute to elaborating legal standards for the KFTC's investigation and preventing disputes that may arise from a regulatory gap.

KCI등재

9영국 경쟁법상 시장지배적 지위남용규제의 최근 동향 - 온라인 행태 광고를 중심으로 -

저자 : 최요섭 ( Yo Sop Choi )

발행기관 : 한국경쟁법학회 간행물 : 경쟁법연구 44권 0호 발행 연도 : 2021 페이지 : pp. 322-352 (31 pages)

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Before Brexit, the UK could manage the national market competition under the implementation of EU competition law. At the same time, the UK competition regime contributed to the modernisation of EU competition law, which is the shift from the form-based approach to the effects-based approach. Since the UK left the EU, the UK Competition and Markets Authority (CMA) has shown its efforts to develop its competition law and policy on the digital economy, which indicates its independence from the EU competition regime. In particular, the CMA has published a number of reports of market study, including 'Online platforms and digital advertising' in July 2020. Moreover, the CMA has opened an investigation into Google's Privacy Sandbox that has the proposals to remove third party cookies and other functionalities from Google's Chrome browser. In effect, the European Commission also announced its investigation on the similar case. Therefore, it is meaningful to discuss the CMA's approach to the digital advertising, which will be useful when we compare it with the EU's approach. Then, it would be possible to find a level of convergence between the UK and the EU in competition law enforcements in the digital sector.
In particular, the recent discussions on the business models in the ad tech become important. Since the German Facebook case, critics have asserted that the infringement of privacy should be regarded as an exploitative abuse. On the contrary, Google's Privacy Sandbox plan aims to protect privacy (i.e., to avoid any possible exploitative abuse or data protection rule), but competition authorities, including the CMA, consider this privacy protection policy as an exclusionary abuse. In effect, Privacy Sandbox may be necessary from data protection regulation perspectives. The application of competition law to Privacy Sandbox may conflict with the rule of data protection law. In sum, there are notably complex conflicts and overlaps between the objectives of an exploitative abuse rule and an exclusionary abuse rule and between competition law and data protection law. This can be regarded as a 'privacy protection paradox'. Moreover, the complicated framework in the ad tech of open display advertising market has brought discussions on the foreclosure by large gatekeepers in the vertically integrated structure. This issue involves the case of Privacy Sandbox.
Lastly, it is also important to discuss the future of UK competition regime. The concept of Ordoliberalism, which heavily affects the formalistic approaches in unilateral conducts, continues to influence the development of EU competition law and policy. The idea of social market economy, relating to Ordoliberalism, is clarified in Article 3 of the Treaty on the European Union as an important value and goal of the EU. However, the UK does not have to accept these notions in the implementation of competition rules as the regime left the EU. Whether the UK competition regime continues to accept the concept of special responsibility that is from Ordoliberalism and social market economy will be one of the important topics after Brexit. This article aims to discuss the CMA's recent approaches to the digital advertising sector, focusing on the Privacy Sandbox, thereby forecast further developments of the UK competition regime.

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