공정거래법상 위계에 의한 고객유인행위 판단의 법리 -SK텔레콤 사건에 대한 서울고등법원 판결에 대한 검토- (Legal Doctrine on Determination of Inducement of Customers by Deception under the Fair Trade Act - Review of Seoul High Court’s decision on SK Telecom Case -)

서지정보

· 발행기관 : 한국경쟁법학회
· 수록지 정보 : 경쟁법연구 / 36권 / 33 ~ 71페이지
· 저자명 : 홍대식

초록

Among the specific types of unfair trade practices under the Fair Trade Act, acts of inducement are dual acts of competition law and consumer law along with acts of coercion. Duality of Inducement of customers by deception is strongly attributed to the additional requirements expressed as deceptive methods. However, in order for this provision to have more clear character of competition law, interpretation theory should be established so that the following two questions can be solved. First, it is doubtful whether the additional requirements expressed as deceptive methods are to specify the requirements of the act or to specify the requirements of the illegality.
Second, when the deceptive method is an act requirement, what is the relationship between this requirement and the illegal requirement? The requirement of deception and the requirement of customer inducement are to be distinguished from the requirement of conduct of customer inducement by deception. The Supreme Court precedents list whether the rational choice of consumers through the comparison of the prices between the operator and its competitors is hindered and whether the fair competition order among the operators of the industry is impeded. In addition, it is not possible to omit a separate evaluation process for the adverse effect on competitive order, even considering the consideration factors for characterizing acts peculiar to customer inducement by deception.
Against this background, this article applies the interpretation theory suggested here to the SK Telecom case relating to handset subsidies by mobile telecommunications operators in determining whether such acts fall within the provision of customer inducement by deception and offers several implications.

영어초록

Among the specific types of unfair trade practices under the Fair Trade Act, acts of inducement are dual acts of competition law and consumer law along with acts of coercion. Duality of Inducement of customers by deception is strongly attributed to the additional requirements expressed as deceptive methods. However, in order for this provision to have more clear character of competition law, interpretation theory should be established so that the following two questions can be solved. First, it is doubtful whether the additional requirements expressed as deceptive methods are to specify the requirements of the act or to specify the requirements of the illegality.
Second, when the deceptive method is an act requirement, what is the relationship between this requirement and the illegal requirement? The requirement of deception and the requirement of customer inducement are to be distinguished from the requirement of conduct of customer inducement by deception. The Supreme Court precedents list whether the rational choice of consumers through the comparison of the prices between the operator and its competitors is hindered and whether the fair competition order among the operators of the industry is impeded. In addition, it is not possible to omit a separate evaluation process for the adverse effect on competitive order, even considering the consideration factors for characterizing acts peculiar to customer inducement by deception.
Against this background, this article applies the interpretation theory suggested here to the SK Telecom case relating to handset subsidies by mobile telecommunications operators in determining whether such acts fall within the provision of customer inducement by deception and offers several implications.

참고자료

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