시장지배지위남용의 형법적 적정규제

Abstract

Abuse of market-dominant position crime has in fact become symbolic-criminal law due to lack of enforcement. However, it needs to remain in order to establish competitive market structure that reconciles business-efficiency with consumer welfare and to rectify asymmetry between consumer and major companies. The issue is that the abuse of market-dominant position crime has extreme vagueness that comes from the circular reasoning of market-dominant power and competition restriction. This article attempts to eliminate the vagueness by systematizing the four factors of abuse of market-Dominant position crime as market-dominance, injustice, type and intention. The injustice especially is recognized by the sharing of moral intuition in civil society, that it is immoral behavior which could result in the inclination to break competitive market structure. The range of illegality of abuse of market-dominant position should be differential by the level of intention and injustice, then the punishment should be given in proportion to the level. Lastly, the exclusive accusation and consent decree should function as a procedural mechanism that accomplishes to combine economic system and criminal legal system.