Competition Courts in the Digital Economy as Institutional Actors from Competition Law and Policy Perspectives

최요섭 강원대학교 비교법학연구소 2020 江原法學 Vol.61 No.-

The rapid progress of globalisation and technology has brought notable developments of competition laws and policies. In particular, the task of competition courts has been highlighted in many competition regimes around the world. In effect, the court, as one of the official or institutional actors, has influenced the development of overall competition policies. For example, the US antitrust regime has shown meaningful developments of case law by adopting the economic theories of the Chicago School, and the US courts have played an essential role in developing competition policies by providing clearer guidance to competition law institutions and private entities, as shown in the case law of vertical agreements. The case law of vertical restraints indicates its change of formalistic doctrine to economic effects. Furthermore, we have observed significant evolutions of competition laws in other regimes, including the EU and Korea. For instance, the European Commission revised its Vertical Regulation and Guidelines, and the European Court has affirmed this approach in the recent vertical cases, and the Court has also developed its case law involving unilateral conducts, such as the Intel case and the MEO case. Likewise, the courts have appeared to be a fundamental institutional actor in competition policy-making by interpreting complex subjects. Their adoption of economic principles and theories of efficiency indicates their increasing role as a principal official actor in competition policy. The Supreme Court of Korea has also provided crucial guidance relating to the implementations of competition law, which eventually affected the policy changes of the Korean competition authority. The competition courts’ decisions do not radically change the policies of the government, but they influence the fundamental agenda-settings of competition policy. Considering the importance of an institutional actor in public policy-making, this article aims to discuss the role of competition courts, focusing on their efficiency consideration in the digital economy.

경쟁정책과 중소기업정책의 조화를 위한 독점규제법의 과제

조혜신 ( Hye Shin Cho ) 한국경쟁법학회 2014 競爭法硏究 Vol.29 No.-

Although competition policy and SMEs policy have overlapping goals and methods, and are capable of being in conflict or harmony, thorough examination of the relation between two policies does not seem to be enough. Considering the realities that the competitiveness of SMEs has not been improved substantially in spite of the quantitative and qualitative development of laws and policies for SMEs, as well as that the difficulties for SMEs in competing with large companies has not been getting better in spite of the enforcement of competition laws and policies, we might assume that those two laws and policies have not been enforced harmoniously with encroaching each other`s effects. If referring to Germany, policy means for protecting and nurturing SMEs ultimately aim to create the best environment for ‘competition’, and try to strengthen the competitive powers of competitors through increasing the level of competition in markets. Also, it is necessary to satisfy the requirement of ‘market conformity’ meaning that all the policy means should not distort competition. Reflecting on the relation between SMEs policy and competition policy, we come to realize that the Korean competition law has several clauses for protecting SMEs, though it does not explicitly aim at it in Article 1. Among them, the important ones are, first, the exemption for cooperatives comprising of small companies in Article 60 and, second, cartel approval for competitiveness of SMEs in 2nd clause of Article 19, both of which are meant to support the competitiveness and countervailing power. However, those two have not been actively utilized so far, and questioned in terms of not only usefulness but also interpretation. Fundamentally, it is doubtful whether the former is proper mean which minimizes the distortion of competition, and it needs to be considered that the latter should be constrained not to restrain competition. Next, the regulations against abuse of market dominant position in Article 3-2 and unfair practice in Article 23, which can be said that they are expected to contribute to protect SMEs through regulating large companies, should be highlighted in that they are the best ways to correct SMEs` disadvantages for now. Furthermore, the assumption of substantial restraint of competition in 4th clause of Article 7 with similar purpose would be useful in protecting SMEs` business area against large companies` aggressive expansion.

시장경쟁질서와 기업의 재무정책

손판도 ( Pando Sohn ),송영수 ( Youngso Song ),최칠선 ( Chilsun Choi ) 한국질서경제학회 2015 질서경제저널 Vol.18 No.3

This study investigates whether market competition order affects corporate financial policy and also the interaction between market competition and financial constraint by using Korean manufacturing firms listed in KOSPI market over 1981 to 2013. Based on the previous dynamic cash model from the theoretical background, the industry equilibrium provides the evidence of the effect of market competition on financial cash or liquidity policy. This model also finds that financial constrained firms use cash reserve withstand liquidity shortfalls during recession economy condition. This fact implies that market competition order triggers two contrasting effects. First, it increases the option value to remain active in the market, which means reinforcing the precautionary motive for holding cash or liquidity asset. Second, it induces the firms to reduce leverage and interest payments on debt. Thus lower debt payments require a smaller amount of cash or liquidity reserve, other things being equal. Although the overall effect is potentially ambiguous, under realistic conditions, cash increases with competition. Therefore, this prior study suggests that competition can explain the increase in cash holdings and exacerbate the negative relation between leverage and cash in this paper. In summarizing all of results from theoretical and empirical predictions, we find that product market competition order affects positively the financial policy, such as the level of cash holdings or liquidity policy, and also firms with higher financial constraint and higher product market competition order tends to increase the cash holdings or liquidity policy. Based on this prediction from model, we confirm that the results predicted from model support the evidence from real data using sample of non-financial firms listed in KOSPI market. To find more strong results, we use several various proxies for product market competition like number of competitive firm in a same industry, Herfindahl-Hirschman Index (HHI), and excess of price-cost margin (EPCM), and financial constraint like SA Index, and then confirm the predicted result from the model. Also we implement various estimation methods, which are OLS and fixed effect model to find the evidence predicted in the model. We find in empirical test as follows: First, we show that order of product market competition by using number of firms, HHI, and EPCM affect negatively the cash holdings or liquidity policy, which are all financial policies. This empirical result is inconsistent with predicted result from the model. This evidence implies that Korean non-financial firms tend to decrease the cash holdings as the product market competition increases. Thus we guess that there is a unique characteristic of Korean non-financial firms in terms of the product market competition and the cash holdings. Second, we find that the intensity of product market competition increases with the intensity of financial constraints, which is consistent with the predicted result from the model. Third, we also find that the effect of intensity of market competition on cash holdings increases with the intensity of financing constraints, which is consistent with the predicted result from the model. We conclude that the empirical evidences found in this paper are robust regardless of several competition measures and estimation methods. These findings suggest that the intensity of product market competition and financial constraint play a key role in decision making of firm’s financial policies such as cash holdings policy or liquidity policy in terms of firm operation.

2000년대 이후 한국 방송 산업의 신규 매체 및 채널 도입 정책에 관한 통시적 접근

홍종윤(Jong-Yoon Hong),정영주(Young-Ju Jung),오형일(Hyungil Oh) 서울대학교 언론정보연구소 2017 언론정보연구 Vol.54 No.3

이 연구는 2000년대 이후 등장한 위성 방송, DMB, IPTV, 종합 편성 채널 등 신규매체 및 채널 도입 과정을 경쟁 정책적 관점에서 통시적으로 분석·평가하고 향후 경쟁 정책에 대한 함의를 도출하는 것을 목적으로 한다. 이를 위해 정책 의제설정, 정책 결정, 정책 집행, 정책 평가로 구성되는 정책 과정을 기본 틀로 하여 신규 매체 도입에 있어 각 정책 단계가 갖는 경쟁 정책적 의미를 고찰했다. 연구결과 나타난 신규 매체 도입 과정의 경쟁 정책 차원의 특성은 다음과 같다. 첫째, 공정 경쟁 관점에서의 거시적이고 장기적 정책 수립이 부재한 대신 단기적이고 정치적인 규제 대응이 주를 이뤘다. 둘째, 핵심적 정책 사안에 대한 경쟁 관점의 판단 및 규제 체계 정립에 실패했다. 셋째, 경쟁 정책 수립 실패가 규제 기관의 후견주의적 정책 결정이나 관할권 다툼, 조정 능력 부재 등과 맞물리면서 특정 사업자에 과도하게 편향되는 정책 결정을 낳았다. 변화하는 미디어 환경에서 더욱 부각되고 있는 공정 경쟁 정책 수립을 위해서는 구체적인 시장 구조 변화에 대한 분석, 신규 진입 사업자의 시장 안착이나 기존 사업자의 보호를 넘어서는 경쟁 원칙 수립, 장기적이고 거시적인 정책 평가 등을 수행하고 이에 기반하여 경쟁 정책의 틀을 새롭게 정립해야 할 필요성이 제기된다. The purpose of this study, based on a competitive policy perspective, is to analyzes and evaluates the introduction process of new media and channels such as satellite broadcasting, DMB, IPTV, general programming channels since 2000, as well as to derive implications for future competition policies. To do this, we analyzed the each policy stage in the introduction of new media based on the policy process consisting of policy agenda setting, policy decision and enforcement, policy evaluation. The characteristics of the competitive policy of the new media introduction process are as follows. First, instead of macro and long‐term policy formulation in terms of fair competition, short‐term and political regulatory responses were dominant. Second, it has failed to judge the decision on core policy issues and establish a regulatory system from a competitive viewpoint. Third, the failure to establish a competitive policy has resulted in policy decisions that are overly biased to specific operators, in combination with the regulatory body’s parental policy decision, competition between regulatory jurisdictions over jurisdiction, and lack of coordination. In order to establish fair competitive policies that are becoming more important in the changing media environment, competition policy framework should be newly established based on analysis of changes in market structure, establishment of competition principles beyond the successful entry of new entrants or the protection of existing ones, and long‐term and macroscopic policy evaluation.

일반 논문 : 기업형수퍼마켓 규제와 경쟁정책

박병형 ( Byong Hyong Bahk ) 한국중소기업학회 2012 中小企業硏究 Vol.34 No.1

이 글은 중소사업자 보호가 경쟁정책에서 어떤 경제적 근거를 가질 수 있는지를 검토하고, 이런 시각에서 최근 시행된 기업형수퍼마켓(SSM) 규제에 관해 살펴본다. SSM 규제의 핵심은 진입제한에 있으며 따라서 일견 반경쟁적이다. 경쟁정책은 ``경쟁자가 아니라 경쟁을 보호한다``는 말은 흔히 인용되는 바이지만 경쟁의 장이 항상 이상적으로 평평한 것은 아니다. 경쟁법의 일부는 어떤 기업을 다른 기업의 남용행위로부터 보호하는데 관한 것이다. 오늘날 경쟁정책은 대체로 소비자후생을 추구하고 있는데, 그렇다면 그것은 (준)빠레또기준에 입각하고 있는 것으로 해석될 수 있다. 이런 관점에서 본다면 중소사업자 보호가 전통적인 경쟁정책과 반드시 상충하는 것은 아니라고 하겠다. 즉 SSM 규제는 중소유통업에 대한 진흥 및 지원 정책에 대한 보완수단으로 이해될 수 있을 것이다. SSM 규제의 현황을 간략히 정리하고 이에 관한 다양한 찬반론들을 비판적으로 검토한 다음, 예상되는 정책효과 및 부작용들, 그리고 개선방향 등을 제시하였다. This paper attempts to suggest some economic rationale of protecting small business in competition policy and, in this context, assesses the regulation against SSM (super supermarkets) openings, which has recently been legislated in Korea. Modern competition policy is mostly enforced along the objective of securing consumer welfare. But the competition policy in America or the European Union was born with multiple, and sometimes contradictory, goals. The Sherman Act in America, for instance, was allegedly ``special interest legislation, and the principal protected class was small business.`` And in the European competition law, protection of competitors has been included in its objective, too. Though people seem to routinely remark that competition policy pursues economic efficiencies, it is quite a recent case. It is often necessary to protect ``competitors`` in order to protect ``competition`` or competitive process itself, not least because competition does not always take place in a ``level field.`` Competition in actuality may not always be competition ``on the merit,`` i.e. ``fair`` competition. Competition policy can actively intervene and protect weak, small businesses in some asymmetric market conditions. In this perspective, protection of small business may not necessarily conflict with promotion of consumer welfare as the legitimate goal. It is frequently disputed whether what competition policy is supposed to pursue is consumer welfare or allocative efficiency. This is whether to aim at consumer`s surplus in particular or total surplus (producer`s surplus added) as a whole. Protecting consumer welfare can be interpreted as a (quasi-) Pareto welfare criterion whereas pursuing total surplus implies the Kaldor-Hicks (compensation) criterion. Though there are some persuasive economic cases for the total surplus goal, competition authorities in many countries tend to (at least implicitly) choose the consumer welfare goal in practice. Thus it can be argued that competition policy as usually enforced is based on a Pareto welfare criterion, which means losers should not be entailed or should be adequately compensated for a business action to be allowed or a change to be implemented. Meanwhile, when there is conflict of interests between consumers and producers, there are quite strong cases for the priority of consumers. The case for free trade for instance can also be understood as based on a Pareto criterion in practice, though it corresponds to a Kaldor-Hicks criterion in the literal sense. Whatever disputes it may cause in theory, in practice any policy change might be hard to justify or cannot be realized without some adequate compensation for those thereby harmed. The SSM regulation is a ``business coordination`` scheme to restrict or prohibit store opening by large retail firms in a designated area. The only purpose of the scheme is to protect small incumbent retailers. It is an entry restriction in essence and might cause consumer harm, and is thus prima facie anticompetitive. As with the case for free trade, however, it can be argued that the regulation could only be revoked on the precondition of some compensating measures. Actually a specific, direct compensation toward small retail businesses would be almost impossible to arrange, and the compensation schemes usually take the form of a support or promotion policy. But such indirect compensation schemes tend to be limited in scope or quite ineffective. The SSM regulation may be rationalized as a supplementary measure to those indirect schemes. In sum, the SSM regulation as a business coordination scheme, possibly anticompetitive, can be considered as a practical, temporary device to supplement the required compensation for the damage to small retail business. We need to briefly overview the current state of SSM regulation and the relevant experience of foreign countries. SSM may be roughly defined as a medium-sized supermarket owned and operated by a large retail firm. They have almost quadrupled in number during the recent decade. In early 2010 numerous bills calling for SSM regulation were proposed in the parliament, and the so-called ``twin laws`` were legislated as substantial amendments to the relevant Acts in November 2010. Formally a mandated arbitration procedures as it is, the regulation would very probably work as an entry restriction. Major countries also have similar experience in the conflict between small incumbent retailers and large incoming retail firms. In Europe in particular, entry by large discount retailers has been regulated with a view of protecting small business, apparently in the form of urban planning. Since the 1990s, however, along the market opening trend under the WTO system, direct schemes for small business protection have been abolished or weakened in most developed countries. There have been heated disputes on SSM regulation, and the main points of the pros and cons are summarized and critically reviewed. First, the core case for regulation is the necessity of protecting small business. Whatever is the normative position, any social change may not secure enough support without adequate concern for the underdog in the change. SSM regulation, though anticompetitive in itself, can be taken as a practical, temporary supplement to compensate the damage done to small retailers. Some people worry that local markets will be monopolized by SSMs. But such a result seems a quite remote possibility, and consumer choices could be enlarged rather than curtailed. As for the competitiveness of the retail industry, though it is argued regulation can have a positive effect, that is not so convincing. Entry regulations mostly tend to induce inefficiency and thereby reduce business competitiveness. There is the unconstitutionality issue, too, which looks somewhat far-fetched. Finally, those arguing against regulation fear the bursting of trade conflict, specifically the potential infringement of the GATS provisions. Such a problem may be technically possible, but practically not so plausible given the current situation in many European countries. In concluding remarks, the expected effectiveness and the unintended consequences of regulation are addressed. It is far from clear what consequences SSM regulation as a business coordination scheme will have and how effective it will turn out. Given the present conditions and policy environment, it seems that regulation may not have a significant effect in the long run, which is confirmed by the experience of foreign countries. Potentially serious problems are the uncertainty that regulation inevitably involves and the wrong signals it can transmit to small business in general. And regulation will lead to a perverse result that it effectively protects the incumbent SSMs from the further entry by other SSMs. The scheme needs to be limited temporally as well as spatially. It is advisable for the competition authority to have some role as the advocate for consumer welfare in the business coordination procedure, and try to restrain the potential anticompetitive effect of the regulation. The discussion so far is not only specific to the SSM regulation, but extended to retail markets in general. Changes will incessantly occur and what follows could be viewed as an ongoing restructuring process rather than a problem of conflict from a dichotomous perspective.

분배정책과 경쟁정책

홍명수 ( Hong Myungsu ) 한국경쟁법학회 2018 競爭法硏究 Vol.37 No.-

There are obvious differences in the way policy goals are set or implemented between the distribution policy, that focuses on the income disparity among economic players and aims to rectify the extreme imbalances, and the competition policy, that protects competition not competitor. However, there are some rooms for policy integration between the two, especially understanding the mutual effects of the two has a significant meaning in implementing the policy. The pursuit of economic decentralization in competition policies is also significant in distribution policies and may be significant in forming the basis of income-led growth or economic democratization. The interrelationships between the two policies should be also considered in the course of implementing the specific policies constantly. Consideration of competition policies in the realization of distribution policies is of course required in terms of the principles of economic order based on market economy, but it is also necessary to seek the proper means to achieve the goals pursued by the distribution policy. In the realization of the competition policy, the perspective of the fairness may also be reflected as the distribution policy or a guiding principle of materialization of the policy. First of all, the task ahead is to flesh out these views in regulations formulated to restrain the concentration of economic power and based on unfairness in the area of competition law.

The State-Owned Enterprises under the ASEAN Regional Competition Policy: Insights from the European Competition Network

Alexandr Svetlicinii 한국법제연구원 2021 KLRI journal of law and legislation Vol.11 No.2

The present study analyzes the current level of progress in introducing a regional competition law and policy that would create a level playing field for the businesses within the ASEAN Economic Community (AEC). It is specifically focused on the state-owned enterprises (SOEs), which dominate various key industries in the ASEAN countries. According to the ASEAN Regional Guidelines on Competition Policy, “competition policy should be an instrument of general application, i.e., applying to all economic sectors and to all businesses engaged in commercial economic activities, including State-owned enterprises.” The paper explores the ASEAN members’ approach towards SOEs in their national competition laws as well as in the ASEAN Regional Guidelines on Competition Policy. The comparative analysis demonstrates certain degree of heterogeneity in regulatory approaches towards SOEs among the ASEAN members. It also addresses the functionality of the current “ASEAN way” of coordinating competition law enforcement in cross-border cases, arguing that a differentiated approach may be required in relation to the commercial practices of the SOEs. While several ASEAN states have introduced their national competition legislation very recently, the enforcement practices of other jurisdictions will be informative in shaping regulatory approaches of the ASEAN members. In this respect, the paper discusses the experiences of the European Competition Network (ECN) in assessing economic concentrations involving SOEs. A recent string of merger cases involving Chinese SOEs has raised a number of practical problems in applying traditional competition law concepts such as single economic entity, control, etc. in relation to SOEs. The insights drawn from the ECN practice should be instructive for the development of the regional framework for competition law and policy in the AEC and wider Asia-Pacific region.

EU 경쟁정책의 특징과 시사점: 법적, 제도적 분석

황준성 ( Hwang Jun Seong ) 한국EU학회 2003 EU학연구 Vol.8 No.2

The European competition policy can look back at a successful forty-year-old practice of application by the European Commission. However, the performance orientation in competition policy has become more and more important with increasing importance of european integration. In a multitude of merger and state aid cases such a performance orientation can be shown. The European competition policy has three broad branches of competition law : (1) Anti-trust/cartel policy, (2) Merger control and (3) State aid. The authority applying competition law should be organised taking regard of aspects of institutional economics. The major articles and regulations of EU competition policy are article 81, 82 and 87 and Council regulation Nr. 4064/89. According to this articles and regulation, EU carries out the competition policy. The European competition policy can give some implications for Korea`s competition policy.

EU의 제약산업에 대한 경쟁법 집행 및 경쟁정책과 그 시사점

이문성 한국비교정부학회 2019 한국비교정부학보 Vol.23 No.3

Europe, together with United States, has led the growth of the pharmaceutical industry around the world. However, some criticized that principle of competition did not work well due to the structural and regulatory characteristics of the pharmaceutical industry. In 2009, the EU Commission conducted sector inquiry on the pharmaceutical industry and reviewed various legal issues in the perspective of the EU competition rules. After the sector inquiry, EU competition authorities have actively enforced their competition rules on the pharmaceutical industry and have actively prepared and implemented competition policies for the industry. Finally, at the request of the EU Parliament and the EU Council, the EU Commission recently submitted a report which includes representative cases and relevant statistics of EU competition authorities on the pharmaceutical industry. Because the industry size is very large and lots of dominant companies have been existed, violations of competition rules have been occurred in various forms and ways. In the perspective of comparative law and comparative administration, it is highly valuable to research about how the EU competition rules, which has played a major role in the global competition law with the United States, has addressed the behaviors. However, since the KFTC published the competition policy report on pharmaceutical industry in 2009, there have been few studies in Korea which reviewed competition law enforcement of EU competition authorities on the pharmaceutical industry. Therefore, this article reviews the recent report of the EU Commission and tries to find implications on the enforcement of MRFTA and relevant competition policy. First, regarding the antitrust enforcement, it seems that the KFTC have mainly focused on rebate issue in the pharmaceutical industry. It is time for the KFTC to review other type of violations which the EU competition authorities have regulated, such as misuse of patent system and other regulatory frameworks for preventing generic companies from entering the market, disparagement the quality or safety of generic drugs for preventing generic companies from entering the market, and the excessive pricing by the original companies. Also, regarding the merger regulation, it is necessary for the KFTC to carefully review the concerns about innovation competition in merger cases involving the industry and find the best remedies through sufficient consultation with the merging entities. For this, experiences of the EU competition authorities on the innovation competition in merger cases of pharmaceutical companies would be great helpful. Additionally, regarding the competition policy, market monitoring about the pharmaceutical industry should be carried out more regularly by the KFTC with reference to the experience of EU competition authorities. Finally, it is necessary for the KFTC to check loopholes in other regulations related to the pharmaceutical industry from the perspective of competition law through competition advocacy activities.

Towards a More Comprehensive International Competition Forum

Ki Jong Lee(이기종) 한국비교사법학회 2009 비교사법 Vol.16 No.1

각국 경쟁법의 상위로 인한 중복, 비효율, 과소제재 등의 문제를 해결하기 위해서 WTO를 중심으로 경쟁법에 대한 다자간 협정의 체결이 시도되었으나 최근 좌절되고 말았다. 그러나 그 대안으로 시도되고 있는 양자협정이나 각국 경쟁법의 역외적용 등은 충분한 해결책이 되지 못하고 있다. 따라서 중단기적으로 연성수렴을 추구하면서 장기적으로는 다자간 경쟁법 협약의 체결가능성을 모색할 필요가 있는데, 이러한 노력을 위해서는 적절한 포럼의 조직이 무엇보다 긴요하다. 각국 경쟁법의 상위를 가져오는 원인은 매우 다기하고 뿌리가 깊어 정확한 진단과 처방을 내리기 위해서는 세계 각국의 관련 분야 인사들이 모두 참여하는 진정으로 글로벌한 포럼을 형성할 필요가 있다. 그러나 한 걸음에 범세계적인 포괄적 포럼을 창설하기는 어려우므로 먼저 지역적 포럼으로부터 출발하여 범세계적 포럼으로 그 포섭범위를 넓혀가는 것이 바람직하다. 이 때 기존 포럼의 확장이나 새로운 포럼의 창설보다는 기존 포럼의 연합체를 형성해 나아가는 것이 가장 효율적인 방법이 될 것이다. 또한 경쟁법에 관한 글로벌 포럼 내지 지역적 포럼은 이미 다수 존재하므로 지역적 민간 포럼을 조직하여 기존의 정부간 포럼과 연대해 나아가는 전략이 효과적일 것이다. 이처럼 민간과 정부를 모두 포괄하는 진정한 글로벌 포럼을 향한 첫걸음으로서 먼저 아시아 지역의 민간경쟁포럼들이 연대를 통해 범아시아 민간경쟁포럼을 조직할 필요가 있다. Transnational measures are needed to address the problem of transnational anticompetitive conducts. And, in order to mark out ideas for solutions to the problems of global antitrust policies, we need a truly global competition forum that could embrace all the regions, disciplines and occupational categories relevant to competition policies. Such a forum could provide sufficient input, thorough verification of output and feedback, and opportunities to build consensus for verified output and gain momentum for activating the solutions accepted by the participants. But existing forums for competition policies have fail to meet some of those criteria and, as a consequence, fail to produce a satisfactory output. And many regions, disciplines and occupational categories lack such a forum. Thus this article suggest that we should start filling up the blanks between competition forums and setting up a joint venture to unite these forums into a more comprehensive one, so that we could reach a truly global joint venture among competition forums at the end of the day. And a non-governmental, Pan-Asian forum for competition policies could be the cornerstone of a truly global competition forum.