부당한 공동행위의 위법성 평가기준 -부당한 경쟁제한성 요건과 대법원 2012.4. 26.선고 2010두18703 판결의 평석을 중심으로- = On Illegality of Unfair Collaborative Act: Focusing on Unfair Restriction of Competition Requirement and Comment on the Supreme Court`s BMW Case (No. 2010DU18703 Decided 26 April 2012)

다국어 초록 (Multilingual Abstract)

The article 19(1) of the Monopoly regulation and Fair Trade Act (hereinafter “Fair Trade Act”) provides no enterpriser shall agree with other enterpriser or enterprisers by contract, agreement, resolution, or any other means, to jointly engage in any of the act which unfairly restrict competition (hereafter referred to as the “unfair collaborative act”) or allow any other enterpriser to perform such unfair collaborative act. Recently, in the BMW Case (No. 2010DU18703 Decided 26 April 2012) which involved six BMW car dealers’ price fixing in Korea, the Supreme Court of the Republic of Korea reversed and remanded the original Seoul High Court’s decision (No. 2009NU9873 Decided 22 July 2010) mainly on the reason of lacking of necessary market definition. The purpose of this article is to discuss which illegality test can be properly applied to the unfair collaborative act under the Fair Trade Act and to comment the BMW Case in the light of interpreting the “unfair restriction of competition” requirement. Before the 7th amendment of the Fair Trade Act, unfair collaborative act was composed of competitors’ agreement to act that restricts competition substantially. In 1992 the National Assembly amended the Act to require unfair collaborative act being composed not of “substantial restriction of competition” but of “unfair restriction of competition”. The “practices substantially restrict competition” means that practices which cause or threaten to cause impacts on the determination of price, quantity, quality, or other terms or conditions of trading by intent of a certain enterpriser or an enterprisers`` organization, because of reduced competition in a particular business area (the Fair Trade Act Subparagraph 8-2 of Article 2). And the term “particular business area” means an area in which any competitive relation exists or may exist, by the subject, stage or geographical area of a trade (Subparagraph 8 of Article 2), that corresponds to the “relevant market” in antitrust theory. The rationale for the market definition process in antitrust case is to enable an inference about market power of the firms in question. If the offense in question is firms’ price fixing, U.S. courts typically find it per se illegal without defining market and measuring the firms’ market share in order to infer the degree of market power. And The European De Minimis Notice illustrates that the European Commission does not confer hard-core restrictions including price fixing a safe harbour. European Court and European Commission do not regard market definition as prerequisite to confirm the illegality of hard-core cartel such as price fixing. And almost all commentators of the Fair Trade Act in south Korea understand that proving a hard-core cartel does not need to define relevant market in order especially to show the practice’s substantial illegality under current legal regime. So considering all these factors, the Supreme Court’s position in the BMW Case can be criticized as too rigid and following formal logic. Furthermore there are two problems in the Supreme Court’s position from the viewpoint of competition policy: Firstly, because hard-core cartels such as price fixing can be established as anticompetitive one except very special circumstances, it could lead to useless process resulting extravagance with the enforcement resources or diseconomy of time and money that requiring market definition and assessment of market share for approving a hard-core cartel in the court. Secondly, for an offense like price fixing there is little if any social cost to balance against enhanced deterrence through applying per se rule. As a generalization, hard-core cartel does not become socially beneficial when market power is lacking; it simply becomes ineffective. A per se rule significantly reduces the cost and increases the effectiveness of enforcement, and even if this leads to overenforcement in the sense that it discourages efforts to fix prices that would not have worked for lack of power, or even punishes attempts to fix prices that failed, the overenforcement (false-positive) would not inhibit any socially valuable conduct; it merely inhibits ineffective attempts to do something both harmful and unlawful. Consequently, I suggest amendment of Article 19(1) to include provision applying a kind of per se rule approach for hard-core cartels.

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