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특집논단 : 렉서스 사건에서의 관련시장 획정을 위한 경제분석 방법론에 관한 연구
권도형 ( Dohyung Kwon ),김남우 ( Namwoo Kim ),오선아 ( Sunah Oh ),이상승 ( Sang Seung Yi ) 한국경쟁법학회 2015 競爭法硏究 Vol.32 No.-
Market power - the ability of a firm to raise price above the competitive level for a sustained period - is a part of the legal framework in antitrust contexts. Monopoly power (or market dominance) is an element of the offense of abuse of dominance under Article 3-2 of the Monopoly Regulation and Fair Trade Act (the “MRFTA”). In addition, market power is assessed under Article 19 of the MRFTA to determine whether conduct undertaken pursuant to an agreement has an adverse impact on the market. Market share is still often used as a good proxy for market power. The common method of proving market power in antitrust cases involves first defining a relevant market in which to compute the defendant’s market share, next calculating that share, and then deciding whether it is large enough to support an inference of the required degree of market power. In other words, to measure market power, it is the first step to define markets. Numerous empirical techniques, including SSNIP are employed to define markets. These techniques are usually purposed to identify the products and geographic regions that should be included in the relevant market by analyzing seller/buyer substitution based on sales and price data. It is also well recognized that it is very difficult in drawing clear boundaries and thus market definition has been often a thorny issue in competition law analysis. The issue of market definition was brought up in two recent court cases in Korea - alleged collusion by BMW and Lexus dealers. In both cases, a concerted action by the dealers carrying the same brand was under the judicial review. The enforcement agency, the Korea Fair Trade Commission (the “KFTC”) in its decision narrowly delineated the relevant market as single brand automobiles (i.e., BMW automobiles market and Lexus automobiles market in Korea, respectively) and the appellants in both cases countered by arguing that the relevant market includes at least other luxury brand automobiles-both foreign and domestic. These two cases have drawn many antitrust scholars and practitioners’ attention so as to become a leading case in connection with market definition. Many antitrust economists and attorneys wrestled with market definition issue for considerable time. This article provides a critical opinion particularly regarding the KFTC’s narrow approach to market definition through an in-depth analysis of BMW and Lexus cases, identifying methodological and analytical errors. Chapter 2 describes a summary of the court decisions in Lexus case and its procedural history. Chapter 3 conducts an economic analysis in Lexus and BMW cases from a critical perspective. Chapter 4 discusses the merits and demerits of two methods to delineate relevant markets-consumer survey and econometric method. Chapter 5 concludes that the economic methods and analysis used to define market should be very carefully assessed by the court to avoid false negatives.
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