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행정지도와 공정거래법의 적용제외 및 부당한 공동행위의 성립요건
이문지 한국경영법률학회 2005 經營法律 Vol.16 No.1
‘Administrative Guidance’ means governmental activities outside statutory authorization. In Korea, the government has traditionally guided private enterprises through highly complex systems of administrative guidance. The Korean legal environment has increased the effectiveness of administrative guidance in industrial policy as follow: “Korean informal regulatory process functions within a legal system that consists of a ministry's statutory authority limited by administrative rules and doctrines of judicial review that are designed as a check against arbitrary policies. In Korea, courts grant ministries' broad discretion in their regulatory methods because of vaguely worded statutes. Combined with low levels of judicial review, this broad discretionary authority insulates much of Korea's industrial policy from challenge.” Administrative Guidance is essentially a denotation for actions undertaken by a public official to persuade specific individuals or firms to behave in a certain manner which may often result in unlawful horizontal collusion and have invoked cease and desist orders from the Korea Fair Trade Commission. But recently such orders were canceled several times at the Supreme Courts or Seoul Court of Appeals on the ground that the guidances and the firms' co-operative actions were in accord with the ultimate goals of the Korean Competition Law or that agreements between firms did not exist. This Paper analyze the several administrative adjudications and judical decisions for defining the relationship between the administrative guidance and antitrust immunity
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이문지 한국기업법학회 2004 企業法硏究 Vol.17 No.-
The history of the intellectual property misuse doctrine makes clear that it has evolved from three related areas of public policy: the prevention of anticompetitive effects, protection of licensees from overreaching by intellectual property holders, and ensuring compliance with the purposed of the intellectual property laws. Recent decisions of the Federal Circuit view the intellectual property misuse doctrine as designed primarily to prevent anticompetitive effects resulting from improper intellectual property licensing and largely ignore the equity and intellectual property law-based rationales that gave rise to the doctrine, while the Federal Circuit does not require conduct constituting intellectual property misuse to rise to the level of an antitrust violation, it does often look to antitrust law to supply at least general standards for determining when a practice should be considered misuse. Debate about the misuse doctrine centers around two interrelated issues: (1) the conduct, if any, that should constitute misuse; and (2) the appropriate consequences of a misuse finding. Most criticism of the misuse doctrine involves the first issue and makes one or more of the following points. first, the case law may reflect outdated thinking about the market power that results from the exercise of intellectual property. Second, the doctrine, as applied on a per se basis, fails to take into account the procompetitive benefits of many licensing practices and thus covers practices that are competitively benign. Third, to the extent that the misuse doctrine embodies policies other than those inherent in the antitrust law, there are no consistent standards for determining what is or is not misuse; the resulting legal uncertainty may discourage some socially beneficial licensing activities. The criticism that misuse doctrine is vague, uncertain, and even irrational as applied to certain conduct can be addressed by identifying the relevant po1icy concerns and more closely examining the behavior alleged to be misuse in light of such concerns. Intellectual property policy rather than competition policy should primarily determine the types of conduct that warrant a misuse remedy. Antitrust law is always available to redress those 'extensions' of intellectual property that cause competitive harm under the antitrust statutes. However, not all extensions that are undesirable from an intellectual property law standpoint are anticompetitive enough to wan-ant antitrust remedies; the misuse remedy should be applied in just such circumstances. Conversely, some practices that are anticompetitive may not be particularly troublesome as a matter of intellectual property policy; these practices should not be considered misuse. The harshness and unpredictability of the misuse defense have been criticized over the years, but the doctrine need not be jettisoned in its entirety to meet criticisms. A more narrowly tailored doctrine could playa circumscribed but important role in achieving the balance between proprietary rights and access to material in the public domain mandated by the nation's intellectual property laws.
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李文址 培材大學校 1985 論文集 Vol.7 No.-
In several advanced countries and at the level of EEC, court or administrative bodies have in certain instances resorted to the theory of enterprise unity when enforcing anti-trust laws. The theory, which is of particular importance in relation to multinational enterprises with many establishments, considers as a single economic entity enterprises with separate legal personality belonging to the same group and subject to the same control. It is deemed to be very useful in applying the Anti-monopoly Law to multinational enterprises for Korea who is now facing an open international economy. This paper present a comparative analysis of the legal situation related to the theory of enterprise unity in the for lowing areas. - agreement between connected enterprises; - accountability of parent companies for anticompetitive practices of their subsidiaries ; - determination of the market power of an enterprise and the abuse of a dominant position
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