이윤압착행위에 대한 공정거래법의 적용에 관한 연구

초록

A margin squeeze arises when a vertically-integrated firm who is dominant in a upstream market sells bottleneck input to rivals who compete with the dominant firm in a downstream market, and the margin between the price at which the dominant firm sells the upstream bottleneck input and the price at which it sells the downstream final good. In the past, the concept of margin squeeze was relatively unfamiliar in Korea’s competition law enforcement, and practical and theoretical discussions on the margin squeeze were poor. However, the Korea Fair Trade Commission’s (KFTC’s) law enforcement in the business messaging service case in 2015 has prompted interest in the margin squeeze, and some theoretical discussions are also being held. In the United States and the EU, on the other hand, there has been abundant debate on this from relatively early days. In the US, unlike the EU, it has been said that the status of margin squeeze as an independent type of monopolization in violation of Section 2 of the Sherman Act has been lost since the Supreme Court’s ruling in linkLine in 2009. The KFTC’s legal analysis in the business messaging service case is somewhat different from the standard law on margin squeeze, and its distinction from conventional predatory pricing is not clear. The Seoul High Court’s ruling, which reviewed the decision of the KFTC in this case, seems to basically apply the law on general predatory pricing, and does not seem to fully understand the difference between the predatory pricing and the margin squeeze. Useful implications for the application of the Korea Monopoly Regulation Act to a margin squeeze can be derived from both the US case law and theoretical discussion on margin squeeze. Furthermore, the issue that needs to be examined in the future is whether it is necessary to recognize margin squeeze as an independent type of abuse of market dominant position under the Korea Fair Trade Act. To date, the US and EU case law on this issue are clearly divided. In order to answer this question, first, the mode and scope of the anticompetitive effect that margin squeeze may cause should be analysed, and second, it should assessed whether it is possible to adequately regulate such anti-competitive effect under a 이윤압착행위에 대한 공정거래법의 적용에 관한 연구 363 type of abuse generally recognized in the current Kore Monopoly Regulation Act and it’s enforcement.

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