묵시적 합의에 의한 부당한 공동행위와 행정지도 - 변액보험수수료율 담합 사건 사실관계를 중심으로

초록

Administrative guidance in unjust concerted practice cases has been a hotly debated issue among antitrust academics and practitioners in that it often provides for opportunities to exchange information and facilitates agreements among competitors. The Supreme Court has long sticked to the rule which constructs the scope of the exemption under the Section 58 of the Monopoly Regulation Act narrowly. On the other hand, courts including the Supreme Court have been more willing to negate establishment of an agreement in concerted practice cases where administrative guidance facilitated agreements among competitors. Recently, courts have also reversed presumption of agreements relatively easily in concerted practice cases where administrative guidance used by relevant regulatory agencies only facilitated information exchanges among competitors, not anti-competitive agreements themselves. When the type of agreements at issue is implied, not explicit, however, careful consideration should be given to the nature and content of the administrative guidance, and the causal connection between the administrative guidance, and following concertion among competitors and their pricing behaviors. An implied agreement can be formed through various non-verbal means such as information exchanges and following concertion among competitors without reaching an explicit agreement on market behavior. Therefore, even if administrative guidance provides for opportunities to exchange information and concertion among competitors, more concrete and specific causal connection between the administrative guidance and the market behavior at issue should be established in implied agreement cases before reversing presumption of an agreement.

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