시장지배적 사업자의 리베이트와 남용규제

• 영문명: The Regulation on the Rebates and Abuses of Market Dominating Enterprisers
• 발행기관: 중앙대학교 법학연구원
• 저자명: 曺聖國(Cho, Sung-Kuk)
• 간행물 정보: 『법학논문집』法學論文集 第34輯 第1號, 165~184쪽, 전체 20쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.04.30

영문 초록

Recently legal principles regulating loyalty rebates as one of abuses of market dominant position became one of hot issues in the competition law all over the world. The Intel and the Qualcom were investigated by Korea Fair Trade Commission and imposed huge amount of surcharges. The legal principles about loyalty rebates are not clear. In Korea, market-dominating enterpriser refers to “any enterpriser enjoying Market Dominance and possibly determining, maintaining, or changing the prices, quantity, or quality of commodities or services or other terms and conditions of business as a supplier or a customer in a particular business area individually or jointly with other enterprisers”. They are regulated under Article 3-2 of Monopoly Regulation and Fair Trade Act(MRFTA). According to the Article 3-2, no market-dominating enterpriser shall commit abusive acts, especially act of unfairly excluding competitive enterprisers. However, whether loyalty rebates are act of unfairly excluding competitive enterprisers is not clear in terms of legal principles. In the United States, loyalty rebates have been considered as predatory acts, price discriminating acts, or exclusive dealing. They have not ever dealt in the Supreme Court. Some cases were dealt in the Circuit Courts, but it is very difficult to draw a coherent legal principle. In 2007, the Report by American Modernization Commission was released. In 2008, the Report by Department of Justice and the Recommendation by American Antitrust Institute were released. The AMC Report suggests hypothetical equally efficient competitor test and discount attribution rule. The DOJ Report suggests substantial disproportionality test. On the contrary, AAI Recommendation suggests structured rule of reason test. It seems that we need more time in concluding what the legal principles regulating loyalty rebates as one of abuses of market dominant position should be. We need more empirical data and considerations.

목차

Ⅰ. 서언

Ⅱ. 가격차별(price discrimination) 법리의 적용여부

Ⅲ. 약탈적 가격설정(predatory pricing) 법리의 적용여부

Ⅳ. 배타조건부 거래(exclusive dealing) 법리의 적용여부

Ⅴ. 결 어

키워드

조건부 리베이트 시장지배적 사업자 남용행위 단일상품 결합상품 loyalty rebate market-dominating enterpriser abuses single product bundled product