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관련시장 획정에 있어서의 주요 쟁점 검토 -행위 유형별 관련시장 획정의 필요성 및 기준을 중심으로-
홍대식 ( Dae Sik Hong ),정성무 ( Sung Moo Jung ) 한국경쟁법학회 2011 競爭法硏究 Vol.23 No.-
In an abuse of dominance case, market definition plays a critical role throughout the legal analysis of the Korea Fair Trade Commission (the "KFTC"): from the initial assessment whether the entity at issue is indeed dominant in the relevant market, to the assessment of the anticompetitive effect generated by the entity`s conduct, to the final assessment of the legality of the conduct. Likewise, in a cartel case, market definition should be required if the KFTC is to assess whether the parties to the agreement at issue constitute competitors and to what extent the agreement at issue restrains competition in the relevant market, irrespective of whether the parties` conduct should be classified as hard-core cartel activity. Further, when viewed in the context of existing KFTC guidelines and Korean Supreme Court precedent, the market definition methodology is substantively the same whether the conduct at issue involves abuse of dominance, a business combination that restrains competition, or a cartel. That is to say, whereas the exact process by which a relevant market is defined could vary depending on the specific case, the overall methodology should remain the same. When defining the relevant market in a case, emphasis should be placed on the nature of the conduct at issue rather than the superficial classification of the conduct. Thus, a case requiring a prospective analysis of potential anticompetitive effects should be distinguished from a case requiring a retrospective analysis of past or existing anticompetitive effects, and vice versa. Meanwhile, whereas the degree of precision required in defining a relevant market varies depending on the specific case, a rigorous analysis of anticompetitive effects accompanied by a concrete definition of the relevant market should be employed where the conduct at issue requires a detailed analysis, e.g., where the presence or degree of anticompetitive effects depends on the market definition, where it is unclear whether the parties to an agreement constitute competitors, etc.
홍대식(Hong Dae sik) 행정법이론실무학회 2007 행정법연구 Vol.- No.18
The administrative fine system in the Monopoly Regulation and Fair Trade Act of Korea(the “Act“) seeks to deter the violator and other undertakings in the same market from repeating the same or similar types of infringements. Its validity from the functional perspective is supported by way of economic explanation with the theory and analysis model. However, for the difficulty and unreality of finding out the economically optimal level of deterrence in every specific case, it is necessary to develop the notion of proxy on which a normative approach is based. The current system adopts relevant turnover-based principle and step-by-step methodology which undergoes a calculation of the basic administrative fine stage, an obligatory adjusting stage, a discretionary adjusting stage, and finally a determination of the administrative fine stage. The problem is that the calculation of administrative fines following the arithmetical rules contained in the Korea Fair Trade Commission(the “KFTC“)'s guidelines does not guarantee the result which corresponds with the legal principles such as those of proportionality and equal treatment. It arises not only from the KFTC's practice which largely depends on the internal guidance with insufficient grounds and data but from the guidelines's flaw which lacks the process enabling the administrative fine to take balance with the scale of improper gains as a statutorily obligatory consideration factor. This article suggests several practical ways including amendments to the guidelines by which the administrative fine system should be improved so as to enhance transparency and predictability and to promote consistency with the legal framework. This will help to relieve making mistakes of 'missing the wood for the trees' in determining the administrative fine.