獨占規制法상 企業結合의 競爭制限性 推定과 그 問題點

李奉儀(Lee Bong-Eui) 한국법학원 2002 저스티스 Vol.- No.65

1996년 독점규제법 제5차 개정을 통해서 신설된 제7조 제4항은 기업결합을 심사함에 있어서 당사회사의 시장점유율이나 절대적인 규모 등을 기준으로 금지요건인 ‘경쟁제한성’을 추정하고 있으며, 그 취지는 수평결합이나 혼합결합과 같이 경쟁제한성을 입증하기 어려운 사안에 대하여 공정거래위원회의 입증책임을 경감함으로써 규제의 효율성을 제고하는 데에 있었다. 그런데 동 추정제도가 공정하고 자유로운 경쟁질서를 보호하는데 과연 효과적인 수단인지의 여부뿐만 아니라 법치국가의 원리에 부합하는지의 여부가 문제되며, 아울러 동 추정제도가 수범자인 사업자에게 예측가능성과 법적 안정성을 충분히 제공하고 있는지, 그리고 기업결합규제가 갖는 특성, 예컨대 경쟁제한성을 판단함에 있어서 언제나 장래의 시장상황에 대한 합리적인 예측을 요한다는 점을 고려할 때 당사회사의 시장점유율이나 절대적 규모와 같은 시장성과만으로 금지여부를 가릴 수 있을 것인지도 다분히 의문스럽다. 법 제7조 제4항은 1980년 독일 경쟁제한방지법 제4차 개정을 통해서 새로 도입된 제23조a를 참고한 것으로 보이는데, 동 조항은 처음 입법화될 당시부터 독일 내에서 줄곧 폐지론이 제기되었고 그 후 법의 해석ㆍ적용상 많은 혼란과 문제점을 야기하면서 거의 활용되지 않다가 결국 1998년의 제6차 개정법에서 폐지된 바 있다. 법 제7조 제4항의 추정제도는 헌법상의 법치국가원리 및 과잉금지의 원칙이나 비례의 원칙에도 부합하기 어렵고, 경쟁제한성 추정을 뒷받침할 만한 시장점유율과 실질적인 경쟁제한과의 상관관계도 이론적으로나 경험칙상 아직 확실치 않으며, 법 제7조 제1항의 금지요건체계와도 조화되지 않을 뿐만 아니라 사업자측에서의 반증이 사실상 거의 불가능에 가깝기 때문에 수평결합에 비하여 수직ㆍ혼합결합이 갖는 다양한 경쟁효과를 고려한다는 의미에서 독점규제법의 탄력적인 운용을 저해할 우려가 크다. 그 결과 동 추정조항은 사실상 시장점유율등을 근거로 일정한 기업결합에 대하여 당연위법을 인정하는 것과 다를 바 없으며, 종래 공정거래위원회가 동 추정조항을 경쟁제한성의 입증이 상대적으로 수월한 수평결합에만 집중적으로 적용함으로써 법 제7조 제4항의 취지에도 맞지 않게 되었을 뿐만 아니라 동조의 도입필요성에도 의문이 제기될 수밖에 없다. 결국 법 제7조 제4항의 경쟁제한성 추정은 경쟁제한성을 제대로 입증하기 어렵고 경쟁이론상으로도 다툼의 소지가 큰 기업결합에 대하여 다양한 조사수단을 갖춘 공정거래위원회조차 이를 제대로 입증하지 못하는 경우에 그에 따른 입증상의 불이익을 온전히 사업자에게 전가할 수 있도록 함으로써 결과적으로 기업결합의 실질적인 금지요건인 “경쟁의 실질적 제한”이라는 개념과 괴리된 채 단지 공정거래위원회의 규제상 편의와 재량확대에만 기여한다는 비난을 면하기 어렵고, 결론적으로 법 제7조 제4항은 이를 삭제하는 것이 바람직할 것이다.

방송,통신시장의 경쟁 ; 방송시장의 공정경쟁이슈에 관한 소고

이봉의 ( Bong Eui Lee ) 한국경쟁법학회 2007 競爭法硏究 Vol.15 No.-

유통분야 불공정거래행위에 대한 제재의 재구성

이봉의 ( Bong-eui Lee ) 한국경쟁법학회 2017 競爭法硏究 Vol.35 No.-

The Distribution Law concerning unfair trade practices(hereafter “the relevant Distribution Law) aims to promoting fair trade order and for this purpose it includes administrative, criminal and civil sanctions. Meanwhile, the Korea Fair Trade Commission(hereafter “the KFTC”) has tried to enhance deterrence effect by means of imposing enormous fines and facilitating private enforcement e.g. damage actions. However, this approach seems to be inefficient, especially because the administrative sanction has been focused on undertakings, not persons who are directly engaged in the actual infringements and have an incentive to commit unfair practices. In principal, fines cannot be imposed on individuals; they are hard to take criminal responsibility due to the KFTC`s reluctance to file criminal request to the Prosecutor General. Calculating corporate fines are mainly based on the “relevant turnover” of the challenged undertakings, which has not any rationale in terms of relevance, appropriateness and proportionality criteria and lacks any coherence under the relevant Distribution Law system. Excessive fine is not a panacea. What matters, is who is to undertake responsibility for that infringement. In this context, it is suggested de lege ferenda that the KFTC shall impose fines, in addition to an undertaking(more exactly the company ad a legal person), on representatives, directors or persons those act to the benefit of that undertaking. As a rule, wider application of criminal sanction through abolition of eliminating the KFTC`s exclusive complaint, is acceptable so far as considered gradually.

독과점시장과 착취남용의 규제 -독점규제법 제3조의 제1항 1호를 중심으로-

이봉의 ( Bong Eui Lee ) 한국경쟁법학회 2010 競爭法硏究 Vol.22 No.-

The Korean Anti-monopoly and Fair Trade Act(hereafter the Act) prohibits exclusionary conducts as well as exploitative ones by means of setting excessively high price or impairing consumer interest(§3-2 I). Controlling monopolistic pricing, which could entail desirable economic effects, from a competition law perspective faces various methodological problems. Therefore, such intervention of competition authorities into price mechanism could be justified only when strict requirements such as high and long-lasting barriers to entry are satisfied. Legal elements of such abuse should be carefully reviewed. The Act illustrates as an exploitative abuse three types of conduct; excessively high price, control of production or sales volume, and harm to consumer interest. However, price setting at the outset and imposing unfair trade terms are not likely to be caught as abuse. Setting excessively low price by dominant company on a demand side is out of control. All these loopholes of the Act need a series of legislative solution as suggested in this article. Above many difficulties identifying abusive price, the terms excessively high and considering supply cost are very hard to be established. Such an interpretative problem arises from the fact that nobody knows what a competitive price is. Cost-price criteria has some merits, but much flaws, too. This article suggests de lege ferenda that the concept of comparative market should have priority and cost-price criteria be applied additionally only if cost calculation can be easily carried out.

공정거래법상 국제적 M&A에 대한 역외적 관할권 - 비교법적 고찰을 포함하여 -

이봉의 ( Bong-eui Lee ) 한국경쟁법학회 2016 競爭法硏究 Vol.33 No.-

Setting notification thresholds for merger review aims at determining the desirable number of notifications and then jurisdictional boundaries of merger control. It has of great importance above all in case of multi-jurisdictional merger. How to delineate jurisdictional limit of national merger control relates to its effective enforcement and possibility of sovereignty impairment. The Korea Anti-Monopoly and Fair Trade Act(hereafter “the Act”) provides with “effects doctrine” as a general principle of any possible extraterritorial application(Article 2-2 of the Act). For this purpose, the domestic effects must be direct, substantial and reasonably foreseeable. As for merger control, the Act sets separately certain notification thresholds focusing on domestic revenues of 20 billion Won held by each foreign participants, which shoule be interpreted to specify the principle of domestic effects provided in Article 2-2. Therefore the notification thresholds are overlapping with the reviewing jurisdiction of the Korea Fair Trade Commission(hereafter “the KFTC”). The KFTC, however, tried to review and impose remedy on some extraterritorial merger whose participants had no or just a small size of domestic turnover in Korea without considering an obligatory notification. Such practices seem to reflect the misunderstanding of the KFTC about the purpose and role of the notification thresholds. The tight linking between pre-merger notification and review procedure is likely to enhance legal certainty and foreseeability and to possibly avoid jurisdictional conflicts. Comparative analysis shows the common stance that foreign-to-foreign mergers not subject to obligatory notification cannot be reviewed ex officio by any competition authorities. In this context, it is suggested that the KFTC should refrain from ungrounded activism and, if necessary, present rationale sufficient for extraterritorial application of merger control in official decisions.

공정거래법상 과징금 산정과 법치국가원리

이봉의 ( Bong Eui Lee ) 한국경쟁법학회 2011 競爭法硏究 Vol.24 No.-

Since last three decades competition law and policy in Korea has experienced amazing developments from not only substantive, but procedural law aspects. Various provisions were amended for being harmonized with global standard and new institutions were adopted from advance competition law regimes. Surcharges, introduced by enacting Korean Anti-Monopoly Act(hereafter “the Act”) of 1980 for the first time in Korea, are understood as mixture of administrative sanction and disgorgement of illegally earned profits. Under the tendency that surcharges of extremely high level have been imposed mainly in order to enhance their preventive function, this article throws a correspondingly high caution to the necessity to guarantee rule of law principles in the surcharges procedure. From this perspective, current surcharges practices of the KFTC shows serious drawbacks, ie. unlimited amount of surcharges, unnecessary overlap of surcharges and damages or fines, judicially unconstrained discretion of the KFTC, and lack or misconception of guiding principles and calculation methods, etc. This article suggest fundamental change from the past approach that is to re-define legal character of surcharges, to re-classify pecuniary sanctions, to simplify calculation methods and therefore to guarantee more legal certainty and predictability, all of which are likely to contribute to more effective enforcement of the Act.

독점규제법상 경제적 제재의 체계적 조망 -부당이득환수의 관점에서-

이봉의 ( Bong Eui Lee ) 한국경쟁법학회 2012 競爭法硏究 Vol.26 No.-

Every legal sanction including economic ones has ultimately a general preventive effect against violations of law. So does the surcharge under the Korean Anti-Monopoly and Fair Trade Act. A surcharge imposed by the Korea Fair Trade Commission, infringing private property more severely than criminal fine, cannot be allowed without any limit, just for the reason that it has proven to be effective for deterrence of illegal acts by undertakings. Therefore, it is more of importance to perceive some limits of traditional perspective of optimal sanction and explore a new surcharge system as a legal sanction, which is to be consistent to the goal and system of the Act. For this purpose, it should be noted that surcharge, damage and fine have in common a function to restitute illegal profits. Such economic sanctions should be harmonized primarily for that purpose; first, criteria for calculating and imposing surcharge should be strengthened to the extent that illegal profits of the challenged undertakings be fully exhausted; second, damage action should be facilitated than ever in order to pursue a subsidiary role of restitution of illegal profits; third, damage and surcharge should be considered each other in the civil and administrative procedures. Finally, fine has its unique role in that it is effective economic sanction to board members and other employees of the challenged undertaking, whereas fines to the undertaking itself as a legal person should be reconsidered in the negative.

독점규제법상 부당지원행위 -법과 정책의 조화를 위한 시도-

이봉의 ( Bong Eui Lee ) 한국경쟁법학회 2013 競爭法硏究 Vol.27 No.-

A prohibition of unfair supporting practices by Subparagraph (7), Paragraph (1), Article 23 of The Monopoly Regulations and Fair Trade Act, which is defined as assisting practices of a specially related person or other corporations through the provision of excessive economic benefit by providing or transacting them with funds, assets, goods and mans, can be implemented effectively, only if its criteria are set with high clarity and rationality. Furthermore, the regulated subjects are to be confined teleologically, i.e. with regard to control of excessive general concentration of economic power in Korea. In this respect, the prohibition of such unfair supporting practices should be reduced to transactions between affiliated companies and specially related persons of a large corporate group. Supporting practices occurred in a large corporate group, in other words internal trade, may have positive effects like reduction of transaction costs and not always threaten fair trade order. As refusal to deal or discrimination is left in principle to a free decision of an undertaking, trade practices which support other companies controlled by the same corporate group should be deemed illegal, only if it hamper competition in the market where the supported company is active or it is likely to create or strengthen general concentration of economic power. The problem raised in the implementing process of that prohibiton lies especially in that the criterion of economic concentration seems so vague and far from being legal assessment. Rather it is a policy objective, which is in its nature inappropriate for being incorporated to normative decision process. The unfair supporting practices should be therefore de lege lata understood just as an extension of unfair trade practices. For an effective prohibition of supporting practices by large volumes which tend to strengthen general concentration by large corporate groups, an introduction of ex ante regulation should be de lege ferenda. considered.

대규모유통업법상 과징금 산정의 근본 문제

이봉의 ( Bong Eui Lee ) 한국유통법학회 2016 유통법연구 Vol.3 No.1

To ensure the principle “rule of law” (Rechtsstaatsprinzip) in the enforcement of competition law, not only substantive, but procedural law aspects should be given more attention. Especially, the amount of surcharge imposed should be proportionate to gravity of the challenged infringement and further be equitable compared to penalties for other similar infringements of competition law. In the calculation of surcharge under the Act on the Fair Trade in Large-Scaled Distribution Businesses(hereafter “the Act”)should be critically reviewed. The Act adopts “price of delivered goods” or “annual rents” as criteria for calculating base amount of surcharge, which are sui specie deemed to “related turnover”, the starting point of calculating surcharge for other infringements of competition law in Korea. The Act, however, provides that the upper limit of surcharge shall be the whole amount of “price of delivered goods” or “annual rents” and that base amount of surcharge shall be resulted from that amount ×imposition ratio which represents the gravity of the infringements. The ratio from 20%to 60% excessively high compared to that for infringements of other Korean competition laws which is prescribed between 0.1% to 1%. Justified considering that the illegal acts of large-scaled distribution Businesses are substantively equivalent to the abuse of (trade-specific) superior position of undertakings under the Korean competition law and contradict to the rule of law principles, particular proportionality. Lack or misconception of guiding principles and calculation methods underlies these drawbacks. This article suggest therefore a fundamental change that the limit be 2%(if necessary, 5%) of “price of delivered goods” or “annual rents” and the imposition ratio be accordingly reduced. This would lead to more legal certainty and predictability in imposition process of surcharges.

독점적 사업자의 끼워팔기: 마이크로소프트사(MS)의 지위남용을 중심으로

이봉의 ( Bong Eui Lee ) 법과사회이론학회 2004 법과 사회 Vol.0 No.27