Special Articles on Fair Trade Law : Subjective Requirement of Competition Law Violations = Special Articles on Fair Trade Law : Subjective Requirement of Competition Law Violations

다국어 초록 (Multilingual Abstract)

The Korean Supreme Court has held in the case of POSCO (2007) that subjective requirements such as anti-competitive intent or purpose must necessarily be considered before there can be any finding of abuse of market dominant position or of competition restraints effects in antitrust cases. However, this holding is not properly supported by legal theory or competition policy. When considering regulations governing the abuse of market dominant position pursuant to Article 102 of the Treaty on the Functioning of the European Union (hereinafter TFEU), the concept of abuse has an objective standard. Subjective requirements, such as anti-competitive intention, are not considered independently. The objective characteristics of the behavior in the relevant market are crucial in determining whether there is the abuse or not. Likewise, Section 2 of the Sherman Antitrust Act prohibits both monopolies and attempts to monopolize, but while the subjective requirements of the alleged monopolistic behavior might be considered, this approach must be understood in terms of the different legal systems regulating the monopoly itself. These issues are relevant to any determination of the illegality of a cartel in the aftermath of the POSCO decision. Article 101 in the TFEU refers explicitly to the purpose of competition restraints as a requirement for the regulations of cartels. However, the purpose in this article could be proved by nature, and where the effect of the competition restriction exists, the purpose of competition restraints could not be understood as an essential requirement. If the subjective requirements are essential to decide the illegality of a claim for abuse of market dominance under the POSCO rules, these requirements may pose a problem in establishing abuse.