미국 Superior Court Trial Lawyers Association 사건의 의의와 평가

초록

Considering the public service aspect of learned professions, which often pursue public interests, we need to be careful in the application of antitrust law to professional association. However, it is true that we cannot avoid implementing antitrust laws in case the decisions by learned professions have an impact on the market. This issue was dealt with in the FTC v. Superior Court Trial Lawyers Ass’n (1990). In this case, a group of lawyers(SCTLA) agreed not to represent indigent defendants in District of Columbia criminal cases until the government increased the lawyers' compensation. FTC field a complaint alleging that the boycott was a per se violation of the FTC Act, but ALJ dismissed it because the per se analysis is inappropriate and cannot be presume the anticompetitive effect on the market. The Court of Appeals concluded that FTC should prove the market power of the boycotters under rule of reason, noting that the boycott have a communicative element. However, the Supreme Court held that the boycott is per se illegal and the appeal court erred in crafting a new exception to the per se. This paper analyzes this case and explores implications for FTC's law enforcement. Firstly, in regulating professional association, antitrust law should fulfill a specific role in cooperation with other industrial policy laws. Secondly, it is desirable to take an advantage of the per se rule in harmony with Korea legal system in the law enforcement. Per se rule could provide appropriate conduct standards for business community and allows FTC to efficiently enforc with fewer side effects. Finally ALJ system of the U.S. FTC needs to be considered for introduction someday but it seems to be not easy in our circumstance because KFTC deals with too many cases at present.

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