이봉의, 공정거래법상 부당한 사업활동방해의 경쟁제한성 판단 - 현대·기아차 판결을 중심으로 -, 2017.08, 중앙대학교 법학논문집 제41집 제2호
Bong-Eui Lee, How to Identify Anticompetitive Effects After “POSCO”, 2017.08, Chung-Ang Journal of Legal Studies 2017 Vol 41, No.2, pp.147-170.
[Abstract]
How to Identify Anticompetitive Effects After “POSCO”
Bong-Eui Lee
Since the POSCO decision of 2007, the discussion on the illegality of a conduct by a market dominant undertaking has almost disappeared. The identity of abuse seems to be clarified in terms of “effects-based approach” or in a broader sense “the economic approach”. The POSCO decision would, however, not be an ending credit, but a beginning for further chaos. In recent, the Korean Supreme Court had several chances to reveal its own conception on anticompetitive effects required to prove exclusionary abuse in subsequent cases. Especially in Hyundai/Kia Motors cases, the Court held that their own distributors and independent dealers were in actual competition and through the challenged conducts like refusal to approve re-location of the latter, etc. such a (economically unthinkable!) competition or competitiveness of a small number of the latter would be hampered. In any economic sense, such factors cannot be conceived as a proxy for lessening of competition. Rather, the anti-competitiveness in practices contains “business difficulties” of that interfered company, which does not have nothing to its demerits or inefficiency. It is also problematic that the Korea Fair Trade Commission(hereafter “the KFTC”) and the courts tend to deal the cases related with market dominance uniformly as monopolistic abuses rather than those of superior position. However, market dominant and superior position can exit compatibly and the KFTC should at first differentiate between the two, considering the unique nature of those conducts challenged. In Hyundai/Kia Motors cases, for example, the independent dealers were thoroughly controled by the Hyundai/Kia Motors and not likely to shift their trading partners to other motor manufacturers in a sufficient degree. Hyundai/Kia Motors had abused such a relative superior position just on their own exclusive dealers. In this context, it is suggested in this article that the POSCO decision should not be interpreted strictly in terms of effects-based concept or naive economic theory, but normative judgements based on the purpose of abuse control should guide the competition authorities to identify more diverse figures of anticompetitive effect. In this way, the effects doctrine could fully cover the possible anticompetitive aspects of an abuse under the competition law regime of Korea.
이봉의, 공정거래법상 부당한 사업활동방해의 경쟁제한성 판단 - 현대·기아차 판결을 중심으로 -, 2017.08, 중앙대학교 법학논문집 제41집 제2호
Bong-Eui Lee, How to Identify Anticompetitive Effects After “POSCO”, 2017.08, Chung-Ang Journal of Legal Studies 2017 Vol 41, No.2, pp.147-170.
[Abstract]
How to Identify Anticompetitive Effects After “POSCO”
Bong-Eui Lee
Since the POSCO decision of 2007, the discussion on the illegality of a conduct by a market dominant undertaking has almost disappeared. The identity of abuse seems to be clarified in terms of “effects-based approach” or in a broader sense “the economic approach”. The POSCO decision would, however, not be an ending credit, but a beginning for further chaos. In recent, the Korean Supreme Court had several chances to reveal its own conception on anticompetitive effects required to prove exclusionary abuse in subsequent cases. Especially in Hyundai/Kia Motors cases, the Court held that their own distributors and independent dealers were in actual competition and through the challenged conducts like refusal to approve re-location of the latter, etc. such a (economically unthinkable!) competition or competitiveness of a small number of the latter would be hampered. In any economic sense, such factors cannot be conceived as a proxy for lessening of competition. Rather, the anti-competitiveness in practices contains “business difficulties” of that interfered company, which does not have nothing to its demerits or inefficiency. It is also problematic that the Korea Fair Trade Commission(hereafter “the KFTC”) and the courts tend to deal the cases related with market dominance uniformly as monopolistic abuses rather than those of superior position. However, market dominant and superior position can exit compatibly and the KFTC should at first differentiate between the two, considering the unique nature of those conducts challenged. In Hyundai/Kia Motors cases, for example, the independent dealers were thoroughly controled by the Hyundai/Kia Motors and not likely to shift their trading partners to other motor manufacturers in a sufficient degree. Hyundai/Kia Motors had abused such a relative superior position just on their own exclusive dealers. In this context, it is suggested in this article that the POSCO decision should not be interpreted strictly in terms of effects-based concept or naive economic theory, but normative judgements based on the purpose of abuse control should guide the competition authorities to identify more diverse figures of anticompetitive effect. In this way, the effects doctrine could fully cover the possible anticompetitive aspects of an abuse under the competition law regime of Korea.