필수설비론의 발전과 통신산업의 자유화

홍명수(Myung-su Hong) 한국비교사법학회 2004 比較私法 Vol.11 No.2

The Essential Facility doctrine has been developed as a legal principle to regulate refusal to deal, which means a monopoly or monopolization in Sherman Act. This doctrine has had important influence on the competition laws in other countries. Specially it has been the ground of regulation in respect of misconduct of market dominant position in Article 82 of EC Treaty. The Essential Facility doctrine is closely connected with a telecommunication industry. The liberalization is now in progress in telecommunication industries world wide, and the Essential Facility doctrine has brought an important legal basis to such progress of liberalization. Such progress means a transformation of telecommunication market structure, so from monopoly to competition, and the Essential Facility doctrine offers the concept of access and interconnection as a means of the transformation. So access and interconnection must be understood in context of the Essential Facility doctrine in competition law. This progress means the transformation of the Essential Facility doctrine itself, from ex post to ex ante regulation, too. In Korea, as U. S. A. and EU, Telecommunications Law prescribes the obligation of access and interconnection. But it is more important that this obligation of access and interconnection contribute towards a competition structure of telecommunications market. To achieve this purpose, above all the procedures and contents of obligations of access and interconnection, including a pricing of access and interconnection on cost-base, should be materialized in respect of competition and the Essential Facility doctrine.

공정거래법상 경제력집중 억제 ; 일본의 일반집중 규제와 시사점

홍명수 ( Myung Su Hong ) 한국경쟁법학회 2006 競爭法硏究 Vol.14 No.-

특집논단 : 자진신고자 감면제도에 있어서 적용 제외 사유에 관한 검토

홍명수 ( Myung Su Hong ) 한국경쟁법학회 2012 競爭法硏究 Vol.26 No.-

The Article 22-2 clause 1 of Monopoly Regulations Act stipulates that For any of the following companies, Companies that have reported improper concerted practices(1) or Companies that have cooperated in the investigations by providing evidence, etc.(2), the remedial measures under Article 21 or surcharge under Article 22 (Surcharge) may be mitigated or waived. The introduction of Leniency Programs(in 1996) into the Monopoly Regulations Act, following the models of U. S. A. and EU, has brought the positive impact on the competitive environment at the industry level. But there may still be several legal problems about the operations of leniency programs, specially the exemptions from the leniency programs. The Article 35 Clause 1 no. 5 of Enforcement Decree of The Monopoly Regulations Act stipulates that Even if a company satisfies the conditions under Subparagraphs 1 through 4, should the company force another enterpriser against the enterpriser`s will to participate in an improper concerted practice or forcefully prevent from disassociating from an improper concerted practice, the company shall not be eligible for reduction of surcharges or reduction of remedial measures. It is very difficult to decide whether the coercion of the company happens, and it must be taken account of the coercion from the market structure or market dominant power. And it is noteworthy that Corporate Leniency Policy of U. S. A. includes Where possible, the corporation makes restitution to injured parties(A. 5.) and The corporation did not coerce another party to participate in the illegal activity and clearly was not the leader in, or originator of, the activity(A. 6.) as requirements of leniency.

불공정거래행위에 관한 대법원 판결 분석(2010) -거래상 지위남용 사건을 중심으로-

홍명수 ( Myung Su Hong ) 한국경쟁법학회 2011 競爭法硏究 Vol.23 No.-

There were two Supreme Court cases about unfair business practices in Monopoly Regulation Act in 2010. In Samsung Fire(Samsung Fire & Marine Insurance Co.) case, Supreme Court found that Samsung Fire had the superior position to the victims by car accidents, who have the direct right to demand compensations based on article 724 in Commerce Act, and Samsung Fire`s practice, neglecting the liability for reparations to victims, belonged to the unfair use of its superior position. Also Supreme Court saw that deal as the prerequisite of suprior position means a general dealing relations beyond the concrete contracts. But such Supreme Court`s opinions leave room for questions, since the abusing superior positions as unfair business practices premise the specific dealing relations. In Dongyang Electric case, Zarlink had broken off the supply of semiconductor goods to Dongyang Electric in 2007. Supreme Court denied the illegality of such a refusal of Zarlink, Since it didn`t have an intent to exclude Bumyang from the relevant market. But there wasn`t any enough review about what Zarlink`s concrete intent to refuse had been.

독점규제법상 행정지도에 의한 카르텔 규제의 법리적 고찰

홍명수 ( Myung Su Hong ) 한국경쟁법학회 2010 競爭法硏究 Vol.21 No.-

It would be appropriate to review two possibilities of regulation on Monopoly Regulations Act in due order, as to the undertaking`s cartel by administrative guidance. First it must be reviewed for such cartels to belong to the prohibition of cartel on articles 19, Monopoly Regulations Act, and furthermore it must be fulfilled to examine for possibility of exemption of Monopoly Regulations Act on article 58. In step of the former it must be considered whether there would be really an agreement among the undertakings and if so, whether such an agreement would be forbidden on Monopoly Regulations Act. And in step of the latter it must be dealt with the possibility of the exemption, in particular whether a undertaking`s agreement by administrative guidance would come under any act or any decree to such act, which could be justified in perspective of Monopoly Regulations Act.

소수지분 취득의 선례로서 BAT and Reynolds 사건의 분석

홍명수 ( Myung Su Hong ) 한국경쟁법학회 2014 競爭法硏究 Vol.30 No.-

BAT and Reynolds, competitors of Philip Morris claimed that to allow PhilipMorris a certain interest in Rothmans would, in effect, allow it to influenceconditions in the european tobacco market. After consulting with theCommission about these concerns, Philip Morris offered to amend the deal. Satisfied with the changes, the Commission granted Philip Morris anexemption. However, as soon as the Commission decided to grant theexemption, BAT and Reynolds lodged a complaint with the ECJ under Article173 (now Article 230) to have the exemption overturned. The firms pushedtheir claim that the acquisition would allow Philip Morris powerful leverage ofRothmans. They argued that Philip Morris might, among other things, use itsprivileged position to seek control of Rothmans in the future. The Court,unconvinced by the argument presented by RJ Reynolds/BAT, ruled in favourof the Commission/Philip Morris. Today this Case still have the larger meaning and has served as an importantprecedent in that it present the principles of procedural rights and reveals theeffect of competition restraints of minority share-holdings in our competitionpolicy.

독점규제법상 특수관계인과의 기업결합에 대한 규제 가능성 검토

홍명수 ( Myung Su Hong ) 한국경쟁법학회 2009 競爭法硏究 Vol.19 No.-

The special related persons mean that he has some relations with the concerned party of the fusions, mainly based upon the controls of business. Because the concerned party and the special related persons have already some relations based on control of business, it could be in doubt that the fusions of them could be corresponded with the essencial points, the creation of single business control of the fusions in Monopoly Regulations Act. But it is possible to take account of such a fusion, between the concerned party and the special related persons, as the fusions in Monopoly Regulations Act, as Gesetz gegen Wettbewerbsbeschrankungen in Germany has described. Korean Fair Trade Commission has treated this type of the fusions with the simplified review process. This process assumes the non-existance of competition restraints, but such assumptions could not exclude a review of competition restraints by Korean Fair Trade Commission. If the commission may carry out the review of competition restraints, it could evaluate the fusions as to horizontal, vertical and mixed one. Specially if the commission evaluate the horizontal fusions and the parties of the fusions exist in same business group, it could not be easy to acknowledge the competition restraints of the fusions, because the total market shares of these parties may not be varied. And as to mixed fusions, the possibility of the transfer of market dominant power by bundling under the convergence circumstance and the effect of the efficiency by bundling must be investigated together.

추계국제학술대회: 보험산업과 독점규제법-보험사업에 대한 독점규제법의 집행과 그 한계 : 보험산업에 대한 규제의 조화 -금융위원회와 공정거래위원회의 관계를 중심으로-

홍명수 ( Myung Su Hong ) 한국경쟁법학회 2008 競爭法硏究 Vol.18 No.-

일본의 독점금지법 위반 사건처리절차

홍명수 ( Myung Su Hong ) 한국경쟁법학회 2008 競爭法硏究 Vol.17 No.-

독점규제법 위반행위에 있어서 주관적 요건의 검토

홍명수 ( Myung Su Hong ) 한국경쟁법학회 2014 競爭法硏究 Vol.29 No.-

The Korean Supreme Court says that the subjective requirements, as anti-competitive intent or purpose, must be needed at the judgment of the abuse of market dominant power, as well as the competition restraints effects. Regulations with regard to the abuse of market dominant power in article 102 in TFEU understand the concept of abuse is an objective, and subjective requirements, such as anti-competitive intention are not considered independent. The objective characteristics of the behavior in the relevant market can be crucial in determining whether the abuse. In Section 2 of the Sherman Act as to prohibition of monopolization or attempted monopolization, the subjective requirements of the behavior would be at least accepted as an essential consideration. However, this approach must be understood in terms of the different legal system, regulating the monopoly itself. The issues could be raised in determining the illegality of cartel, too. In this regard, article 101 in TFEU mentions explicitly the purpose of competition restraints as the requirements of the regulations of cartel. But the purpose in this article proved by nature, in a case where the effect of the competition restriction exists, and could not be understood as a subjective requirement. Competition Law violations in the point of view of the subjective requirements of the criminal law could be a problem.