한국 독점규제법의 개선

Abstract

The Monopoly Regulation and Fair Trade Act(hereafter Korean Antitrust

Act or the Act) has been amended 8 times since its enactment in 1981.

Despite the continual efforts of Korean Fair Trade Commission(hereafter

KFTC or the Commission) to implement the Act for past 19 years, the

principles of a market economy have not been realized and the unfair

business practices have not been eliminated in Korea. This paper aims to

analyse the key problems of Korean Antitrust Act and to suggest its

comprehensive solutions.

First, although many industries have been monopolised or oligopolised

even before the adoption of the Act, the Commission has focused primarily

on controlling cartels and unfair business practices until 1996. Such

limited focus has undermined the effectiveness of this Act, which strives

to promote free and fair competition through the conversion of a

monopolised or oligipolised market structure into a competitive one.

Second, the Act has adopted the presumption of acquiring market

dominant position and of the substantial restraint of competition to

enhance the effectiveness of control against the abuse of market dominant

position and against the concentration of market power by merger. But

this presumptions have not contributed to enhance the effectiveness of the

control, because the standards are reasonably high and complicated. To

enhance the effectiveness of these control, the standards of presumption

should be modified as the level of former German law.

Third, in implementing the Act, the Commission has exercised unbridled

discretion and has chosen to pursue cases an ad hoc basis instead of

developing a coherent and ...