디지털 시장에서의 경쟁법상 단독 행위에 대한 구제방안(remedies) 분석- 각국의 마이크로소프트 및 구글 사건들을 중심으로 - (Remedies for Unilateral Conduct in Digital Markets- Analysis of Microsoft and Google Cases -)

서지정보

· 발행기관 : 경북대학교 IT와 법연구소
· 수록지 정보 : IT와 법연구 / 30호 / 253 ~ 302페이지
· 저자명 : 남수진

초록

While much ink has been spilled on the difficulties of liability determinations using existing competition tools in digital markets, there has been insufficient discussion on the difficulties in designing effective remedies to restore competition in these markets. This article thus aims to fill this gap by comparing landmark unilateral conduct cases in the digital sector from the US, the EU and Korea, namely the Microsoft cases from the 2000s and Google cases from 2010s onwards. The analysis reveals that remedies in digital markets face distinct challenges in their design and implementation monitoring due to market dynamism, technical complexity, and consumer behavioral biases. These characteristics make it difficult to achieve effective remediation through simple “sin no more” prohibitions of past illegal conduct. In the EU and Korea, however, the more recent Google remedies remained limited to these types of passive remedies and have disregarded the lessons learned from the Microsoft cases. Based on these observations, this article proposes the following improvements. In digital markets, where network effects and market tipping is common, stronger forward-looking remedies than the usual “sin no more” remedies are often necessary to restore competition. Furthermore, the article argues that delegating some of the enforcement monitoring tasks to technical experts, transferring the costs of enforcement monitoring, involving third parties in remedy design and enforcement as well as other changes are necessary to ensure effectiveness of remedies. For competition law enforcement to be an effective alternative to European-style digital regulation in advancing competition in evolving digital markets, the legal principles, enforcement practices, and attitudes regarding remedies must also evolve.

영어초록

While much ink has been spilled on the difficulties of liability determinations using existing competition tools in digital markets, there has been insufficient discussion on the difficulties in designing effective remedies to restore competition in these markets. This article thus aims to fill this gap by comparing landmark unilateral conduct cases in the digital sector from the US, the EU and Korea, namely the Microsoft cases from the 2000s and Google cases from 2010s onwards. The analysis reveals that remedies in digital markets face distinct challenges in their design and implementation monitoring due to market dynamism, technical complexity, and consumer behavioral biases. These characteristics make it difficult to achieve effective remediation through simple “sin no more” prohibitions of past illegal conduct. In the EU and Korea, however, the more recent Google remedies remained limited to these types of passive remedies and have disregarded the lessons learned from the Microsoft cases. Based on these observations, this article proposes the following improvements. In digital markets, where network effects and market tipping is common, stronger forward-looking remedies than the usual “sin no more” remedies are often necessary to restore competition. Furthermore, the article argues that delegating some of the enforcement monitoring tasks to technical experts, transferring the costs of enforcement monitoring, involving third parties in remedy design and enforcement as well as other changes are necessary to ensure effectiveness of remedies. For competition law enforcement to be an effective alternative to European-style digital regulation in advancing competition in evolving digital markets, the legal principles, enforcement practices, and attitudes regarding remedies must also evolve.

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