시장지배적 사업자의 Loyalty Rebate(충성리베이트)의 법리에 관한 연구

초록

The regulation on the loyalty rebates became one of hot issues among several competition authorities. The Intel case was dealt by Japan, Korea, EU and the United States of America. However, the legal principles of loyalty rebates by market dominant enterprisers are not clear, yet. There are two positions in regulating loyalty rebates by market dominant enterprisers. One is active position and the other is passive position. The active position emphasizes that loyalty rebates are essentially price discounts although they have exclusionary effects. The position argues that they can be regulated in case anti-competitive effects are proven. It is concerned about false positives. On the other hand, the passive position emphasizes that loyalty rebates are essentially exclusionary or even punitive. According to the position, illegality can be admitted by the harms to the competitors or the allocated price below marginal cost. The passive position argues that cost-based test or hypothetical equally efficient competitor test can be used to prove anti-competitive effects. However, the active position argues that those tests are notoriously hard to administer. The 2008 AAI Report for Obama Administration suggests structured rule of reason, according to which loyalty rebates are prima facie exclusionary with proving some elements. The differences between two position are originated from two aspects of loyalty rebates; pro-competitive effects and anti-competitive effects. I think that the illegality depends on economic analysis about effects of each individual conducts.

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