사업자단체에 대한 미국 독점규제법 적용에 관한 연구

초록

Business associations play a variety of roles including exchanging information among members about developments of technology and industry environment, making code of ethics in their business and building friendship. However, business associations also have negative aspects related to restraint of competition from the perspective of monopoly regulation law because it is a combination of competitors. In Korea, many business associations have played as instruments for communicating between government and industry to notify policy of government to members and report needs of industry to government. The decisions by these trade associations have power to bind members because they tend to reflect government policy. Due to these historical reasons, there are special provision, Article 26, on trade associations in Monopoly Regulation and Fair Trade Act(hereafter “MRFTA”). In contrast, antitrust laws of the United States does not have a separate provision for trade association and apply Sherman Act and Federal Trade Commission Act(hereafter “FTC Act”) to trade association likewise other companies. Anticompetitive acts by trade association can be considered as a combination in restraint of trade under section 1 or Sherman Act or monopolization under section 2 of Sherman Act or unfair method of competition under FTC Act. The Supreme Court of United States has developed the doctrines of per se illegality and rule of reason through various cases of trade association and has recognized the role as market facilitators. In the view of law and economics, the Supreme Court accepts the concept and effects of information asymmetries and transaction cost, which can be causes of market failure. This paper analyzes the law enforcement system and cases on trade association of the United States, compares them with those of developed jurisdictions and Korea and explores implications for law enforcement of MRFTA.

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