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A Study on the Revision of Unfair Practice Based on the Korean Competition Law
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공정거래법상 불공정거래행위 개편 방안에 관한 고찰

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Type
Academic journal
Author
Journal
Ewha Legal Science Institute 법학논집 법학논집 제23권 제3호 KCI Accredited Journals
Published
2019.1
Pages
1 - 33 (33page)

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A Study on the Revision of Unfair Practice Based on the Korean Competition Law
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Abstract· Keywords

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The regulation of unfair trade practices is stipulated in the article 23 of monopoly regulation and fair trade act. The article 23 includes not only unfairness but also restraint of competition as an illegality standard. This ambiguity of illegality has been pointed out as a main reason for the lack of predictable antitrust enforcement in Korea. The broad range of unfair trade practice clause has not been in harmony with civil law and its fundamental values. Therefore, article 23 should be reorganized in the future. This paper would suggest the way for revision. First, article 23 should pursue the fairness standard instead of competition standard. The overlapping regulation between dominance abuse of article 3-2 and unfair practice of article 23 is not desirable not only in the view of legal regime but also in the efficiency of antitrust enforcement. So, refusal to deal, price discrimination and predatory pricing should be regulated only in terms of abuse of market dominating power, article 3-2. Second, the vertical restraint such as tying, exclusive dealing, territorial and customer restrictions should be regulated in the separate provision apart from article 23, pursuing competition standard. Third, as a result, the revised article 23 will be composed of ‘unfairly inducing customers of competitors’ and ‘making a trade by unfairly taking advantage of his position in trade’, focusing on the fairness of terms, conditions and procedure for trade. So article 23 will perform the pivotal role in consistently enforcing the fair condition in Korean market. Fourth, ‘assisting a person or a company with a special interest by transacting under substantially favorable terms’ should also be separated from article 23, because this clause is based on not unfairness standard but economic power concentration standard, originating from Korean economic development.

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