Tuned Mass Damper를 이용한 Linear Quadratic Gaussian 하이브리드 제진

최요섭 대한건축학회지회연합회 2005 대한건축학회지회연합회 학술발표대회논문집 Vol.1 No.1

The purpose of this study is to investigate the effectiveness of a LQG Hybrid controller to suppress the earthquake disturbance for the building structure. The ground acceleration of N-S component of El-Centro earthquake is scaled to confirm that the building behaves within the elastic range. The tuned mass damper(TMD) on the top floor regulated by LQG algorithm is designed to control the floor displacements. The displacement responses of the hybrid control are compared with those obtained from an active control along with a passive control. The results showed that the LQG hybrid control used approximately 50% less input forces than an active control to satisfy the performance criteria.

A Comparative Study of Competition Law Relating to the New Economy: A Case Law in the European Union

최요섭 인하대학교 법학연구소 2018 法學硏究 Vol.21 No.1

The emergence of new technologies plays an important role in competition law: The current approaches of competition authorities around the world have resulted in vigorous enforcement against large multinational undertakings involving the new economy. In particular, the intersection of the Fourth Industrial Revolution, relating to the new economy, and globalisation has attracted worldwide attention. In sum, the emergence of the new economy and antitrust assessments have raised the question of whether competition law should play an active role in this field. Moreover, two fields in the new economy have become crucial: Online platforms and standard essential patents. These cases demonstrate the importance of the intersection of antitrust with intellectual property rights and data protection, which is critical for development in the Fourth Industrial Revolution. As the competition law cases involving the new economy become increasingly crucial, it is necessary to discuss recent developments in competition law and policy applicable to the new economy by assessing the case law of competition regimes of other countries. This may help Korean competition policymakers improve the antitrust approaches to the new economy. In consideration of these issues, this article aims at discussing the appropriate role of competition law and policy in the new economy.

디지털 경제에서의 경쟁법 상 착취남용규제 - 비교법적 방법으로 -

최요섭 경북대학교 법학연구원 2021 법학논고 Vol.- No.74

Data is one of the most important sources for the development of dynamic efficiency and disruptive innovation in the era of digital economy. Collecting and processing data has caused not only positive outcomes but also negative results in our modern society: this has brought competition law issues. In particular, some argue that privacy is a part of consumer welfare, and competition law should be applicable to the case of infringement of privacy protection, especially where the undertaking holds a market-dominant position. The German Facebook case, which is in front of the Court of Justice of the European Union, indicates a possible application of competition law against any harm to consumer welfare, including privacy, and the type of privacy infringement may fall within the category of exploitative abuse. To discuss possible implementation of competition law to privacy case, it is essential to discuss the typology of abuse of market dominance, focusing on the types of exploitative abuse. The current approach to consumer welfare indicates its focus of price, quality, choice, and innovation. In addition, some critics argue that privacy in the sector of digital economy should be considered as consumer welfare. It is timely to discuss the assessment standard for privacy infringement under competition law. In effect, there is a possibility of the overlap between competition law and data protection law when competition law of abuse of market dominance is applied to the privacy infringement cases. Therefore, it is important to establish a standard for appraising exploitative abuse of privacy by looking at the existing competition law approaches to excessive pricing that is the typical exploitative abuse. This article provides a number of suggestions for assessing abuse of market dominance relating to privacy as follows. First, competition law should be applicable to the privacy case relating to abuse of market dominance. In other words, the rule on unfair trade practices should not be considered as an option, thereby to avoid any possible conflicts between competition law and data protection law. The competition rule can be applied to the case of a super platform or digital gatekeeper. Second, a privacy infringement itself cannot be an automatic violation of competition law. It is necessary to consider cumulative abuse, which means that a competition authority needs to provide other evidences of exclusionary effects. Third, the test of alternative services or existence of multi-homing is essential in the assessment. The lack of competition in the market is the crucial proof of abuse of market dominance relating to privacy. It is beyond doubt that privacy has become one of the most important parts in the market competition of the digital economy. Data is the source of digital competition. Therefore, the trade-off or balance between privacy protection and dynamic efficiency should be the important part in assessing a violation of competition law. In addition, to solve a potential overlap problem of competition law and data protection law, the scope of competition law to privacy should be limited to the case of abuse of market dominance rather than of unfair trade practice. 최근 디지털 경제가 발전하면서 다양한 독점폐해의 문제가 등장하고 있다. 특히 인공지능이 소비자의 행동을 관찰・분석・이용할 수 있는 기술이 발전하면서, 온라인 플랫폼 이용자의 프라이버시보호의 문제가 논의되고 있다. 무엇보다 대규모 플랫폼에 의한 데이터 결합이 시장지배적 지위남용인지에 대해서 유럽연합을 중심으로 논의가 진행되고 있다. 착취남용과 관련된 가격남용규제의 내용과 유사하게, 대량의 개인정보를 수집・통제하는 행위를 시장력의 원천으로 논의하기도 한다. 따라서 착취남용의 범위를 프라이버시침해까지 포함하는 넓은 개념으로 확장되어야 한다는 의견이 있다. 디지털 착취남용의 내용은 프라이버시와 관련하여 소비자선택, 서비스 품질의 저하와 소비자의 동의 없는 개인정보의 획득과 같은 행위를 포함한다. 일반적으로 착취남용인 가격남용의 경우 위법성 판단을 위해 경제분석이 필요한 반면, 프라이버시침해의 경우 경제분석보다는 행위자체로 판단이 이루어질 가능성이 많다. 따라서 착취남용으로서의 프라이버시의 내용을 논의하고 규제의 범위에 대해서 연구하는 것은 현대 경쟁법의 발전과 관련하여 중요하다. 현재 이와 관련된 법리가 제대로 형성되지 않은 상황이며, 프라이버시가 소비자후생에 포함되어야 한다는 논의에도 다양한 이론과 이견이 존재한다. 디지털 경제가 급속도로 발전하는 상황에서 현대 경쟁법은 진화를 할 수밖에 없다. 디지털 경제 관련 남용행위의 유형화와 범위, 그리고 위법성 판단기준을 설정하는 것이 필요하다. 이 논문은 디지털 경제와 관련하여 현대 경쟁법에서의 착취남용 기준을 비교법적 방법으로 논의하는 것을 연구목적으로 한다.

Competition Law and Policy on Issues Relating to Standard Essential Patents

최요섭 국민대학교 법학연구소 2017 법학논총 Vol.30 No.2

The relationship between competition law and IP law has been debated for a long time. Although there are some existing presumptive tensions between the two bodies of law when the exercise of IP rights (IPRs) conflicts with the goal of competition law, many believe that both laws have the same objective – to encourage innovation and improve competition, thereby maximising welfare in society. In particular, with the recent rapid globalisation, it has become important to understand different competition regimes in order not to infringe their competition rules, and this is especially true for multinational undertakings that exercise IPRs in the global market. In addition, over recent decades standardisation has become crucial in areas involving technology, and the issues arising from standard setting organisations (SSOs) and related topics, such as standard essential patents (SEPs) and fair, reasonable and non-discriminatory (FRAND) commitments, have led to theoretical and practical arguments in the field of competition law because the number of cases concerning this topic has increased noticeably in many competition jurisdictions. Furthermore, a comparative study of competition laws, focusing on the approaches in the United States, the European Union and Korea, may help to develop harmonised competition rules on this subject. In one particular case, the Korean competition authority, the Korea Fair Trade Commission (KFTC), has imposed a cease-and -desist order and a surcharge on Qualcomm for its abuse of market dominance and its unfair business practice. Considering the importance of new economy issues, this article aims at discussing recent developments in competition law and policy on IPRs as they relate to SSOs and the topics of SEPs and FRAND commitments.

The Issue of the Economic Analysis and Effect-based Approach in the EU Competition Rule of Abuse of Market Dominance: The Recent Opinion of the Advocate General in Intel

최요섭 한국외국어대학교 EU연구소 2017 EU연구 Vol.- No.45

There is no doubt that the EU competition regime has played a crucial role in contributing to the standards of international competition law, and the implementation of EU law has been regarded as a meaningful example of successful legal techniques. In particular, one of the important cases involving the international cases is the Intel judgments. For example, the Korean competition agency imposed sanctions on Intel, and the Seoul High Court upheld its decision. Similarly, the European Commission made a decision. The General Court (GC) also upheld most of the Commission’s decision, and the case is pending before the Court of Justice of the European Union (CJEU). One of the most essential issues in the Intel case was the question of whether an economic analysis was important in the scrutiny of the rebate practice. The soft law of the Commission provides the standard for the economic analysis, but the GC rejected the economic analysis in Intel. Since the 2014 judgment of the GC, there has been much discussion. In October 2016, Advocate General (AG) Wahl finally provided his opinion regarding the problem of the economic analysis, which seems very different from the GC’s judgment. Although the opinions of AGs are not legally binding, AG Wahl’s opinion has stimulated important discussion on the problem of the formalistic approaches in competition cases. Because the development of EU competition law has affected other competition regimes, including the Korean competition regime, the recent discussion on AG Wahl’s opinion is meaningful for the further development. In particular, according to AG Wahl, the role of economics in the implementation of competition laws and policies has been recognised. The final judgment of the CJEU, which will eventually be issued, will influence the global competition law society relating to the issue of economic analysis in monopoly cases.

A Study of Competition Law and Policy on Predatory Pricing -Comparative Perspectives-

최요섭 전남대학교 법학연구소 2012 법학논총 Vol.32 No.3

There are a number of controversial issues in competition law and policy on abuse of market dominance, and one of them is predatory pricing. However,examining price in the market is almost always a challenging task to competition authorities, especially when diverse theories do not give a clear answer. In particular, predatory pricing is one of the most difficult subjects in competition law enforcement. It may result in harms to competition and consumers after raising prices. However, this type of practice can be somewhat costly and difficult to achieve its exclusionary purpose, particularly where its competitors survive in the market. Predatory pricing can be defined as the practice for excluding competitors on the basis other than efficiency. Nonetheless, competition law normally does not simply prevent a firm from practising this type of exclusionary practice, especially when its rivals successfully compete with it on the merits. To summarise,competition law prohibits firms with sufficient market power from misusing it to eliminate market players. The debates over predatory pricing are diverse, and it is not surprising that the divergent theories over it have introduced a number of standards for competition law and policy. Therefore, some argue that the debate about predation theory has been distorted by a number of imprecise interventions in the market. In particular,each competition law jurisdiction has different standards from each other. Furthermore, it is almost impossible to apply a theory of one school for all cases since there is no one-fits-all type model for predatory pricing. Similar to the substantive competition law provisions in other countries, the Korean competition act, the Monopoly Regulation and Fair Trade Act (MRFTA),prohibits predatory pricing under Article 3-2 or Article 23. The Korean competition authority, the Korea Fair Trade Commission (KFTC), considers this type of business practice as an exclusionary one. Exclusion of competitors according to Article 23MRFTA refers to an unfair business practice for excluding rivals in the relevant market. However, there are some contentious issues in its application. Some may argue that Article 3-2 MRFTA, the provision of prohibiting abuse of market dominance, rather than Article 23 should apply to the predatory pricing because it is impossible for a firm without market dominant position successfully to achieve its goal of predation. It is not plausible that a competition authority can scrutinise predatory pricing by a firm without market power. Competition law analysis on predatory pricing requires an assessment of market power, and economics is essential for such assessment. This article aims to provide a better analysis on predatory pricing. This article thus discusses economic debates and current approaches in other competition jurisdictions and their different levels of enforcement, including standards of predatory pricing. It also explains the legal provisions on predatory pricing in Korea and its existing problems in competition law implementations through discussing the case law and KFTC’s decisions. Finally, this article proposes a competition law amendment and suggest criteria on predatory pricing for better and effective enforcement.

Competition Laws on Tie-in Sales in the New Economy

최요섭 강원대학교 비교법학연구소 2015 江原法學 Vol.46 No.-

Competition law has developed noteworthy, especially in areas of the new economy. In particular, the Microsoft case of abuse of market dominance regarding its tying has brought an attention to competition authorities around the world. Competition authorities are concerned about tying when it forecloses competition by leveraging its market power in the tying product market to monopolise the tied product market. However, tying can provide positive outcomes as it can be used as an important method to obtain fees for the use of a process or product and for entering a new market. Furthermore, it can provides benefits from economies of scale and scope which may lead to price reduction by lowering production and distribution costs. In addition, tying can reduce consumers’ searching costs for the most appropriate mixture of new products, thereby ensuring quality. Given this complex background, several competition law topics in the Microsoft case arose, including market definition and efficiency justification. Therefore, it would be meaningful to discuss divergence and convergence in law enforcements among the competition regimes, regarding tying in new economy in light of globalisation of competition law. This article is thus concerned with the topic of tying in new economy, and it examines whether the problem from different approaches to market definition and efficiency justification can be solved through adopting the effect-based implementation, which could be used as a global standard.

Market Definition of Online Platforms in the New Economy: Another Foggy Day

최요섭 단국대학교 법학연구소 2019 법학논총 Vol.43 No.1

Platforms, or online platforms in the new economy, have become one of the difficult topics in competition law and policy around the world. Online platforms have a number of distinctive features that make competitive assessments difficult, such as the two (or multi-)sided market. The traditional method of defining the relevant market is the appraisal of substitutability on the demand side, while considering other factors like switching costs, etc. However, this legal and economic tool may not work for the market definition of an online platform. Despite the existing difficulties, the EU and the US have provided some guidance for the market definition in the area of online platforms by developing case law and policy on the digital economy. This article aims to discuss the recent developments involving the market definition of online platforms, thereby suggesting a future policy for the Korean competition regime.

현대 경쟁법에서의 시장점유율 관련 연성법에 대한 연구

최요섭 한국외국어대학교 법학연구소 2018 외법논집 Vol.42 No.1

There is no doubt that the rapid development of global economy and market has brought the increasing number of competition law cases, and there has been a notable convergence among the competition regimes around the world. In particular, the Korean competition regime has developed since the adoption of competition law in 1980. The Korean competition policymakers have adopted various soft laws, including notices and guidelines relating to competition law, thereby improved predictability and legal certainty, and this framework has a similar framework of that in the EU. In effect, one of the significant features in the soft law of competition law is the provision of safety zone or safe harbour that offers exemptions from the application of competition law where undertakings satisfy certain criteria. For instance, when the undertakings’ practices do not fall within the category of hard-core restrictions, such as price-fixing cartels, and their market shares do not exceed a certain level, they can get exemption benefits based on safe harbour. In addition, there were numerous amendments to the Korean guidelines of anti-competitive agreements and unfair business practices, which reflects the global trend. The soft law is not legally binding, but it may influence business conducts because it is provided by the Korean competition agency. Therefore, the standard of safe harbour in soft law has become important in the modern competition regime. However, the approach to safe harbour in Korea does not seem very effective, dissimilar to the cases in the EU and the US. Moreover, the case law in Korea has not supported the safe harbour provision. Therefore, this paper aims to compare the soft laws relating to competition law, focusing on the EU and the US, thereby to suggest proposals for the development of Korean soft law. 최근 세계경제의 발전과 세계시장에서의 경쟁법 사건의 증가로 경쟁법의 발전이 있었으며, 각국 의 경쟁법 사이에 수렴화 현상이 진행되고 있다. 우리나라의 경우도 1980년 공정거래법을 입법한 이래로 선진적인 경쟁관련 법과 정책 발전이 있었다. 우리나라 경쟁당국인 공정거래위원회는 공정 거래법의 효율적인 집행을 위해 고시와 지침과 같은 행정입법 형태의 연성법(soft law)을 제정하여 적용하고 있다. 이는 사업자와 같은 경제주체가 시장에서 활동함에 있어 공정거래법의 적용 예측 가능성을 높여, 법적확실성을 구축하는데 그 목적이 있다. 특히, 우리나라 공정거래 연성법은 미국 의 연성규범보다 유럽연합의 내용과 유사한 측면이 있다. 유럽연합을 포함하여 전 세계적으로 연성법의 주요한 특징은 안전지대(safety zone) 혹은 안전 항(safe harbour)이라고 할 수 있는데, 이는 사업자가 특정한 요건을 충족하는 경우 경쟁법의 적용 을 제외하는 내용이다. 대부분의 경쟁법 안전지대 규정은 경쟁법의 대상이 되는 사업자의 행위가 가격담합과 같은 경성제한행위(hard-core restrictions)에 포함되지 않고, 사업자의 시장점유율이 특정한 기준 미만일 경우 경쟁법의 적용범위에서 제외 하도록 하고 있다. 이와 관련하여 우리나라 의 경우도 부당한 공동행위와 불공정한 거래행위금지 관련 지침에서 시장점유율 중심의 안전지대 규정을 포함하고 있으며, 최근 안전지대와 관련하여 개정과 발전이 있었다. 위의 시장점유율 관련 경쟁법의 연성규정은 법적구속력이 없으나, 공정거래위원회의 심사의 기준을 제시하므로 사업자의 활동에 영향을 줄 수 있다. 따라서 관련 안전지대에서의 시장점유율 기준은 경쟁법의 현대화와 관련하여 중요한 의미를 갖는다. 그러나 유럽연합 혹은 미국의 경우와 다르게, 우리나라의 시장점유율 관련 공정거래 연성법은 효과적이지 않은 것으로 판단된다. 또한 대법원의 판례의 내용이 위의 시장점유율 관련 연성법의 법적확실성을 구축하는데 부족한 부분이 있다. 따라서 본 연구는 비교법적 방법을 통해 미국 및 유럽연합의 연성법의 내용과 발전에 대해서 논의하고 우리나라의 관련 규정을 비교하여 향후 발전방안을 제언하는 것을 목적으로 한다.

The Issue of Information Exchanges Regarding Price under Competition Law: Comments on the Supreme Court’s Judgment on the Ramen Cartel from a Comparative Perspective

최요섭 숭실대학교 법학연구소 2016 法學論叢 Vol.36 No.-

There is no doubt that cartels are one of the most harmful business practices, and most competition regimes have treated this conduct as a supreme evil. In particular, a hard-core cartel directly influences the social welfare because it creates market power through agreements, thereby extracting all consumer welfare. In most competition jurisdictions, there are two important elements for bringing a competition law case against a hard-core cartel: Proof of the existence of an agreement and of its prevention of competition. Likewise, the two-prong test lies at the heart of cartel enforcement. Regarding the requirements for evidence of an agreement, competition regimes have developed their own scrutiny tests. The Korean competition regime is not an exception. Article 19(1) MRFTA sets forth its prohibition of anti-competitive agreements between competing undertakings, and this provision proscribes any anti-competitive conduct by contract, agreement, resolution, or other means of considerable business practices. The Korean competition authority has vigorously enforced this legal measure against horizontal agreements that are concluded by competing economic entities. Nonetheless, the KFTC recently failed to bring direct evidence of the first criterion, the existence of an agreement. The Supreme Court of Korea annulled the judgment of the Seoul High Court and the decision of the KFTC on 24 December 2015, and it has raised some critical issues, such as the importance of direct evidence of an agreement and the market effect of the sharing of price information. In order to discuss the issue of information sharing, this article aims at providing an analysis of the ramen cartel, with a comparative study of the rules regarding the sharing of information on prices.