시장지배적 사업자의 리베이트와 남용규제

The Regulation on the Rebates and Abuses of Market Dominating Enterprisers

Recently legal principles regulating loyalty rebates as one of abuses of market dominant position became one of hot issues in the competition law all over the world. The Intel and the Qualcom were investigated by Korea Fair Trade Commission and imposed huge amount of surcharges. The legal principles about loyalty rebates are not clear. In Korea, market-dominating enterpriser refers to “any enterpriser enjoying Market Dominance and possibly determining, maintaining, or changing the prices, quantity, or quality of commodities or services or other terms and conditions of business as a supplier or a customer in a particular business area individually or jointly with other enterprisers”. They are regulated under Article 3-2 of Monopoly Regulation and Fair Trade Act(MRFTA). According to the Article 3-2, no market-dominating enterpriser shall commit abusive acts, especially act of unfairly excluding competitive enterprisers. However, whether loyalty rebates are act of unfairly excluding competitive enterprisers is not clear in terms of legal principles. In the United States, loyalty rebates have been considered as predatory acts, price discriminating acts, or exclusive dealing. They have not ever dealt in the Supreme Court. Some cases were dealt in the Circuit Courts, but it is very difficult to draw a coherent legal principle. In 2007, the Report by American Modernization Commission was released. In 2008, the Report by Department of Justice and the Recommendation by American Antitrust Institute were released. The AMC Report suggests hypothetical equally efficient competitor test and discount attribution rule. The DOJ Report suggests substantial disproportionality test. On the contrary, AAI Recommendation suggests structured rule of reason test. It seems that we need more time in concluding what the legal principles regulating loyalty rebates as one of abuses of market dominant position should be. We need more empirical data and considerations.