WTO보조금분쟁에 있어서의 경쟁법상 관련시장 획정법리의 시사점

유광혁(Yoo Kwang-Hyuk) 법무부 국제법무정책과 2013 통상법률 Vol.- No.109

Subsidy disputes, characterized as being complex and diverse in general, require in-depth consideration of relatively new jurisprudence, that is, definition of relevant market. In fact, the concept of relevant market is more evidently witnessed in the field of competition law. A rough overview of the existing domestic competition laws from many countries shows that they introduce relevant market jurisprudence as a useful instrument for the evaluation of the degree of market power which the specific monopolist under investigation has taken over effectively. In particular, U.S. Antitrust law, which is regarded as being highly influential in the development of domestic competition laws throughout the world, has provided definite meanings of relevant market. According to this law, relevant market is defined as the set of combination of relevant product market and relevant geographic market. This definition may be applicable to the relevant market jurisprudence under the WTO Agreement on Subsidiesand Countervailing Measures (“SCM Agreement”) since it seems systematical and reasonable to define the relevant market by determining individual product-based market and geographybased market, respectively and taking account of both markets in overall. A study on most recent subsidy disputes captures that the Appellate Body also acknowledges the necessity of the definition of relevant market and leaves the door of referring to the U.S. Antitrust law open. However, as stated before, the Appellate Body has just made superficial discussions of relevant market issue. It has not provided any specific guidelines on the basis of which the relevant market is defined. Furthermore, relevant market jurisprudence under the U.S. Antitrust law seems not providing useful guidelines applicable to the definition of relevant market under the SCM Agreement since those two jurisprudence intrinsically pursue for different object and purpose each other. Therefore, the concept of relevant market requires us to search for specific consideration factors for the appropriate definition of relevant market. This work is the beginning of the calculation of benefit and the essential prerequisite for the application of market benchmark jurisprudence. However, this is not that straightforward because the concept of market is very abstract and flexible by nature. Moreover, universal and absolute definition of the market can not be assumed realistically. Above all, government programs at issue have a tendency of getting complex and diverse, sometimes even unique or ambiguous such as debt restructuring program highlighted in Japan-DRAMs case. This situation poses the necessity of appropriate guidelines consistently and comprehensively applicable to all kinds of government programs without any exception. Indeed, to ensure effective application of market benchmark jurisprudence depends on how specifically relevant market could be defined. The establishment of adequate guidelines serves to achieve this objective, further helps identify applicable market benchmark, and ultimately facilitates accurate calculation of benefit.

공정거래법상 기업결합의 관련시장 획정

손창완(Sohn, Chang-Wan) 원광대학교 법학연구소 2011 圓光法學 Vol.27 No.1

The Monopoly Regulation and Fair Trade Act in Korea prohibits mergers which substantially restrict competition in the line of commerce. The term "the act substantially restrict competition" refers to any of the practices that affect or threaten to affect the setting of price, quantity, quality, or other terms or conditions of trading in accordance with the intent of a certain enterpriser or an enterprisers' organization owing to reduced competition in a line of commerce. Market concentration, which is found based on market share of the company is a key indicator in determining anticompetitive effect due to mergers. In order to calculate market share of the company, it is necessary to specify the 'line of commerce' that is subject to calculation of the company's market share, and this is known as 'relevant market'. Defining relevant market for goods where competition is being questioned, is a prerequisite to determining anticompetitive effect of mergers with respect to the Fair Trade Act. However, defining the relevant market is more than just a precondition in determining anticompetitive effect via mergers; it has a critical role in determining whether the merger restrict competition. Relevant markets refer to the scope of enterprisers which are co-competitors, and thus, broad definition of relevant market lowers the market share or market power of the company thereby alleviating the evaluation standard of anticompetitive effect via mergers. On the other hand, if relevant market is defined narrowly, the opposite effect results. This shows that in determining the illegality of mergers, reasonable and accurate definition of the relevant market is imperative. Therefore, in many merger review cases, the recipient assert the market in mergers defines broadly, which brings the issue of ddefinition of relevant markets an essential issue in merger review cases. This paper thus analyzes how relevant markets defines in Free Trade Commission's decisions related to review of mergers for future in-depth studies on relevant markets.

공정거래법상 기업결합의 관련시장 획정 - 공정거래위원회의 심결례 분석을 중심으로 -

손창완 원광대학교 법학연구소 2011 法學硏究 Vol.27 No.1

The Monopoly Regulation and Fair Trade Act in Korea prohibits mergers which substantially restrict competition in the line of commerce. The term "the act substantially restrict competition" refers to any of the practices that affect or threaten to affect the setting of price, quantity, quality, or other terms or conditions of trading in accordance with the intent of a certain enterpriser or an enterprisers' organization owing to reduced competition in a line of commerce. Market concentration, which is found based on market share of the company is a key indicator in determining anticompetitive effect due to mergers. In order to calculate market share of the company, it is necessary to specify the 'line of commerce' that is subject to calculation of the company's market share, and this is known as 'relevant market'. Defining relevant market for goods where competition is being questioned, is a prerequisite to determining anticompetitive effect of mergers with respect to the Fair Trade Act. However, defining the relevant market is more than just a precondition in determining anticompetitive effect via mergers; it has a critical role in determining whether the merger restrict competition. Relevant markets refer to the scope of enterprisers which are co-competitors, and thus, broad definition of relevant market lowers the market share or market power of the company thereby alleviating the evaluation standard of anticompetitive effect via mergers. On the other hand, if relevant market is defined narrowly, the opposite effect results. This shows that in determining the illegality of mergers, reasonable and accurate definition of the relevant market is imperative. Therefore, in many merger review cases, the recipient assert the market in mergers defines broadly, which brings the issue of ddefinition of relevant markets an essential issue in merger review cases. This paper thus analyzes how relevant markets defines in Free Trade Commission's decisions related to review of mergers for future in-depth studies on relevant markets.

방송통신 융합 환경 하의 관련시장 획정 이슈

이내찬(Nae-Chan Lee) 사이버커뮤니케이션학회 2007 사이버 커뮤니케이션 학보 Vol.24 No.1

방송통신 융합이라는 환경 변화에 대응하키 위해 각국의 규제기관은 기존의 규제체계를 수평적 규제체계로 전환하고 있다. 본고의 목적은 경쟁상황평가제도, 특히 방송시장의 특수성을 감안한 관련시장 획정 방법론을 IPTV를 사례로 분석하고 정책적 함의를 도출함으로써 원활한 수평적 규제체계의 운영을 위한 초석을 제공하는데 있다. IPTV의 관련시장 획정 시 주요한 이슈는 전국사업자와 지역사업자가 경쟁하는 지리적 관련시장과 아날로그와 디지털 서비스 간 진화 서비스가 경쟁하는 경우의 관련시장 획정이다. 전자와 관련해서는 전국사업자의 전국 단일요금의 설정 여부와 간접수요대체성의 존재가 관련시장의 획정에 영향을 미치며 후자의 경우는 디지털 시장의 성장 단계가 영향을 미친다. 결합판매가 이루어질 경우 시장획정 역시 중요한 이슈이다. 본고에서 살펴본 정책적 함의는 다음과 같다. 첫째, IPTV사업자의 사업구역 분할과 관련해서는 요금 설정권의 높은 자유도에 의한 시장지배력의 강화와 규모, 범위의 비경제 등의 약화 간 상쇄관계를 고려하여야 한다. 둘째, 네트워크 포설은 시장 성장과 사업자의 수익원 안정화에 따라 그 범위를 점진적으로 확대하는 방식이 바람직하며 시장이 기능하지 못하는 부분은 보편적 역무의 제도화에 의해 보완되어야 한다. 마지막으로 합리적인 겸영규제의 운영을 위해서는 경쟁상황평가의 제도화를 고려하는 것이 바람직하며 특히 시장의 동태적 변화를 염두에 두어야 한다. It is a general trend that regulatory authorities in many countries transform existing vertical regulatory regimes into horizontal ones in response to an environmental change such as convergence between broadcasting and telecommunications. The purpose of this paper is to offer a reference for better management of the horizontal regulatory regime by applying IPTV the methodology of market review, especially the logic of defining relevant market, considering broadcasting-market-specific factors and deriving policy implications. Two main issues in market definition of IPTV are first, a geographical market issue where national and regional operators are competing with and second, the coexistence of migrating services such as analogue and digital technologies. Whether prices are nationally set uniformly and a chain of substitutability exists affect the former, while phases of growth in digital technologies influences the latter. Market definition in case of bundling is another issue. Policy implications are as follows. Trade-offs between high degree of freedom in pricing and diseconomies of scale and scope of undertaking when adequate geographic partition of service areas of IPTV operators is considered. Also, it is desirable that networks be expanded gradually in accordance with phases of market growth and stability in revenue streams of carriers, while areas of which market function does not work are complemented by the institutionalization of universal service. Finally, market share regulation should be supported by market review and consider dynamic changes of market.

기업결합의 관련시장 획정방법에 관한 연구

정해원 ( Chung Hae-won ) 제주대학교 법과정책연구원 2018 국제법무 Vol.10 No.1

우리 공정거래법은 제7조 제4항에서 ‘누구든지 주식의 취득·소유, 임원겸임, 합병, 영업양수, 새로운 회사 설립의 참여 등의 행위로 일정한 거래분야에서 경쟁을 실질적으로 제한하는 행위를 하여서는 아니된다’고 하여 일정한 기업결합을 규제하고 있다. 경쟁제한적 기업결합 심사의 핵심문제는 그러한 결합이 시장지배력을 강화하는 것인지를 판단하는 것이고, 이를 위해서는 결합회사의 예상 시장지배력을 산정할 수 있어야 하는데 이에는 필수적으로 관련시장의 획정이 선행되게 된다. 따라서 관련시장의 획정은 시장지배력을 결정하는 기본적 출발점이 되고, 또한 기업결합심사의 모든 분석과 결정의 핵심으로서 논쟁의 중심이 되어 왔다. 관련시장은 보통 상품시장과 지역시장으로 나누어 판단하는데, 그 분석방법으로서 현재 각국에서 이용되는 방법에는 미국에서부터 발전된 가상적인 독점기업 이론 - SSNIP test, 임계매출감소분석, 적하이론, 전환이론, 그 밖에 설문조사 등이 있다. 우리 공정위는 1981년부터 현재까지 기업결합 심사기준 및 가이드라인을 바탕으로 전술한 이론들을 적용하여 관련시장을 획정해왔고, 대표적인 심결례로서 영창악기와 삼익악기의 기업결합 사건, 하이트와 진로의 기업결합 사건, 신세계와 월마트의 기업결합 사건, SK텔레콤과 CJ헬로비전의 기업결합 사건 등이 있다. 이렇게 공정위가 현재까지 각종 분석이론을 활용하여 경쟁제한적 기업결합의 관련시장을 획정하여 왔기는 하나, IOT를 기반으로 다양한 신규산업이 발달하고 국제적인 기업결합이 증대되는 현실을 고려한다면 기업결합의 사회적 중요성에 비해 그 분석의 깊이가 아직은 얕다고 볼 수 있다. 제4차 산업혁명시대를 맞아, 공정위는 더 다양한 시각의 자료와 각 분야의 전문가 집단을 지식을 활용하여 관련시장을 좀 더 정치하게 확정한 후 이를 바탕으로 기업결합을 심사하여 궁극적으로 공정한 거래질서를 확립할 수 있도록 하여야 한다. Article 7 (4) of the Fair Trade Act stipulates that ‘anyone who engages in the acquisition, ownership, executive officer, merger, transfer of business, or participation in the establishment of a new company’. A key issue in the analysis of the competitive aspect of the business combination is to determine whether such a combination enhances market dominance. To do so, the expected market power of the combined company should be estimated. The delimitation is preceded. Therefore, a series of tasks that define the market in the business combination analysis has become a basic starting point for determining market dominance, and has become a center of stakeholder dispute as the core of all analysis and decision in business combination review. In the case of the competition-limited business combination examination, the related market is divided into the commodity market and the regional market. Currently, the methods used in each country include the Hypothetical Monopolist Test - SSNIP test developed from the US, Critical Loss Analysis, Elzinga-Hogarty test, and Diversion approach. Since 1981, the KFTC has defined the related market by applying the above-mentioned theories based on the criteria and guideline for business combination evaluation from 1981 to the present. As a representative case example, the case of merger of Yeongchang musical instrument and Samick musical instrument, The merger of Shinsegae and Wal-Mart, and the merger of SK Telecom and CJ HelloVision. Although the KFTC has thus far defined the relevant market for competition-limited business combination by using various analytical theories, considering the reality that various new industries are developed based on IOT and international business combination is increased, the social importance of business combination The depth of the analysis is still shallow. In the era of the Fourth Industrial Revolution, the KFTC has decided to use more diverse sources of data and expert groups in each field to make the related market more politicized by utilizing its knowledge, To be established.

FTA와 경쟁정책 -한미 FTA상의 경쟁 장의 내용 및 국내법제에 미칠 영향을 중심으로-

김두진 한양법학회 2009 漢陽法學 Vol.25 No.-

The KOREA-US Free Trade Agreement (hereinafter “KORUS FTA”) was signed in April 2007 between trade negotiating representatives, and is awaiting respective legislator’s recognition. Even though the issue of recognizing KORUS FTA by the National Assembly is still in deep political debate in Korea, the KORUS FTA will be a cornerstone, if it will be effectuated, that will lead both countries into the economic progress and joint prosperity. This article is intended to provide the relationship between the FTAs and Competition Policy and the expectation about the prospective influence of KORUS FTA on the Korean competition legal system. The KORUS FTA Chapter Sixteen regulates the competition-related matters. The competition Chapter is composed of 9 articles. Among them, article 16.1 declares adopting, maintaining and applying competition measures to the anticompetitive business conduct. And Articles 16.2 and 16.3 admit room for the designated monopolies and the state enterprises. Article 16.5 guarantees transparency in the both Parties’ competition enforcement policies. And article 16.7 prescribes a consultation procedure to address specific matters that arise under competition Chapter. The expansion of the relevant geographic market through KORUS FTA might have an effect on measuring anticompetitiveness. That is why, generally speaking, once the relevant geographic market would be defined larger, the possibility of acknowledging market power might lessen. And the consent orders may be introduced into Korean competition legal system stimulated by KORUS FTA. The introduction of the consent orders will prompt the public enforcement of the Anti-Monopoly and Fair Trade Act and encourage the compensation for injured consumers. The enforcement of KORUS FTA will raise the occurrence of the international competition law cases. Classifying the cases according to the anticompetitive issues included, two approaches could be adopted to solve the problem. In hard core cartel cases, the courts or competition law authorities of an affected Country may exercise jurisdiction over cartel behavior in Contracting Party, applying domestic competition Law. Differently, in cases not involving hard-core cartels, comity factors should be applied to require the courts or competition law authorities of an affected Country to abstain from exercising extraterritorial competition law jurisdiction over anticompetitive conduct in Contracting Party.

시장획정 방식의 개선과 과제

홍명수 ( Myung Su Hong ) 법과사회이론학회 2005 법과 사회 Vol.0 No.29

FTA와 경쟁정책:한미 FTA상의 경쟁 장의 내용 및 국내법제에 미칠 영향을 중심으로

김두진(Kim, DooJin) 한양법학회 2009 漢陽法學 Vol.25 No.-

The KOREA-US Free Trade Agreement (hereinafter “KORUS FTA”) was signed in April 2007 between trade negotiating representatives, and is awaiting respective legislator’s recognition. Even though the issue of recognizing KORUS FTA by the National Assembly is still in deep political debate in Korea, the KORUS FTA will be a cornerstone, if it will be effectuated, that will lead both countries into the economic progress and joint prosperity. This article is intended to provide the relationship between the FTAs and Competition Policy and the expectation about the prospective influence of KORUS FTA on the Korean competition legal system. The KORUS FTA Chapter Sixteen regulates the competition-related matters. The competition Chapter is composed of 9 articles. Among them, article 16.1 declares adopting, maintaining and applying competition measures to the anticompetitive business conduct. And Articles 16.2 and 16.3 admit room for the designated monopolies and the state enterprises. Article 16.5 guarantees transparency in the both Parties’ competition enforcement policies. And article 16.7 prescribes a consultation procedure to address specific matters that arise under competition Chapter. The expansion of the relevant geographic market through KORUS FTA might have an effect on measuring anticompetitiveness. That is why, generally speaking, once the relevant geographic market would be defined larger, the possibility of acknowledging market power might lessen. And the consent orders may be introduced into Korean competition legal system stimulated by KORUS FTA. The introduction of the consent orders will prompt the public enforcement of the Anti-Monopoly and Fair Trade Act and encourage the compensation for injured consumers. The enforcement of KORUS FTA will raise the occurrence of the international competition law cases. Classifying the cases according to the anticompetitive issues included, two approaches could be adopted to solve the problem. In hard core cartel cases, the courts or competition law authorities of an affected Country may exercise jurisdiction over cartel behavior in Contracting Party, applying domestic competition Law. Differently, in cases not involving hard-core cartels, comity factors should be applied to require the courts or competition law authorities of an affected Country to abstain from exercising extraterritorial competition law jurisdiction over anticompetitive conduct in Contracting Party.

시장지배적 사업자의 거래거절에 대한 공정거래법리: 대법원의 포스코 사건 판결

황창식 ( Chang Sik Hwang ),신광식 ( Kwang Shik Shin ) 한국경쟁법학회 2008 競爭法硏究 Vol.18 No.-