거래상지위남용 규제 집행의 효율성 제고방안

Abstract

The regulation for abuse of trade position has been a very important issue in Korean competition law. However, the principles for regulating power asymmetry between firms has not yet been established and there is not even agreement among legal practitioners or scholars about the role of competition law in the issue. According to the statistics, the regulation implementation for abuse of trade position holds an significant place among Korean competition law cases, which are dealt as a kind of unfair practices and are hard to find similar examples except for Japan.

Because abuse of trade position occurs in various circumstances, we need to analyse the relationship of trade partners as well as structure of trade and identify the causes which lead to abusing trade position. In negotiating stage, the information asymmetry and bargaining power asymmetry are main causes. After the conclusion of a contract, relation-specific investment can be especially problematic. Relation-specific investment is sunken cost to an investor.

Of course, deterrent forces like reputation effect or penalties can contribute to prevent abusing trade position. However, if firms try to concentrate on a short-term pursuit of profits, we cannot expect reputation effect to prevent the abuse of trade position. Likewise, if penalties by government are not sufficient, we cannot expect deterrent effect. The regulation of abuse of trade position should be carefully designed considering the various causes and deterrent forces.

The basic approach which is proposed in this article is remedy-centered, not punishment-centered, because the issue is essentially about civil dispute between firms. In those issues, the point is the remedy for victims. In addition, the Korea Fair Trade Commission should launch an investigation just in case there are harms to market order or public interest. Criminal penalties should be considered as the last step. As the issue related to power asymmetry between companies will not end in a short time in Korea, a long-term and elaborate strategy is needed instead of cure-all.

The regulation for abuse of trade position has been a very important issue in Korean competition law. However, the principles for regulating power asymmetry between firms has not yet been established and there is not even agreement among legal practitioners or scholars about the role of competition law in the issue. According to the statistics, the regulation implementation for abuse of trade position holds an significant place among Korean competition law cases, which are dealt as a kind of unfair practices and are hard to find similar examples except for Japan. Because abuse of trade position occurs in various circumstances, we need to analyse the relationship of trade partners as well as structure of trade and identify the causes which lead to abusing trade position. In negotiating stage, the information asymmetry and bargaining power asymmetry are main causes. After the conclusion of a contract, relation-specific investment can be especially problematic. Relation-specific investment is sunken cost to an investor. Of course, deterrent forces like reputation effect or penalties can contribute to prevent abusing trade position. However, if firms try to concentrate on a short-term pursuit of profits, we cannot expect reputation effect to prevent the abuse of trade position. Likewise, if penalties by government are not sufficient, we cannot expect deterrent effect. The regulation of abuse of trade position should be carefully designed considering the various causes and deterrent forces. The basic approach which is proposed in this article is remedy-centered, not punishment-centered, because the issue is essentially about civil dispute between firms. In those issues, the point is the remedy for victims. In addition, the Korea Fair Trade Commission should launch an investigation just in case there are harms to market order or public interest. Criminal penalties should be considered as the last step. As the issue related to power asymmetry between companies will not end in a short time in Korea, a long-term and elaborate strategy is needed instead of cure-all.