• The Korean Society of Law and Medicine
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• v.19 no.2
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• pp.75-98
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• 2018

Recently, the antitrust tribunal of Seoul High Court revoked the disposition of Korea Fair Trade Commission(hereafter 'KFTC'). While KFTC determined that the restriction of Korea Pediatrician Association violated article 26 of the Monopoly Regulation and Fair Trade Act(Korean antitrust law), Seoul High court viewed that KFTC failed to prove the compulsory measures and the restraint of competition required in article 26. The 'restriction' of article 26 should be interpreted as 'excessive restriction'. Since entrepeneurs' organization is allowed to limit its member's activities, KFTC could regulate entrepeneurs' organization on a very exceptional basis. In addition, though entrepeneurs' organization did not use compulsory measures to enforce its resolution, its 'excessive restriction' could fit into the notion of 'restriction' of article 26. Under the current medical care system, the price of medical care is decided by Korean government. Therefore the restriction of Korea Pediatrician Association is not likely to have effect on the price. However, the resolution of Korea Pediatrician Association was aimed to decrease the supply of medical care. Therefore the resolution is capable of having effect on the competition. In this sense, though KFTC failed to submit direct evidence to support the decrease of quantity, there could be possibility of restraint of competition. The Seoul High Court's decision has important implications. The leading case on restraint of competition(Supreme Court 2002Du8628, Posco case) was delivered in 2007. However the remaining issue such as the standard and scope of restraint of competition is not clear. Through reappeal case of this decision, Supreme Court has to decide the line between competition and its restraint.

• The Korean Society of Law and Medicine
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• v.17 no.2
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• pp.177-219
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• 2016

A commercial advertisement is not only a way of competition but also a medium of communication. Thus, it is under the constitutional protection of the freedom of business (article 15 of the Constitution) as well as the freedom of press [article 21 (1) of the Constitution]. In terms of the freedom of business or competition, it should be noted that an unfair advertising (false or misleading advertisement) can be regulated as an unfair competition, while any restraint on advertising other than unfair one might be doubted as an unjustifiable restraint of trade. In terms of the freedom of press or communication, it is important that article 21 (2) of the Constitution forbids any kind of (prior) censorship, and the Constitutional Court applies this restriction even to commercial advertising. In this article, the applicability of these schemes to advertising of the so-called learned professions, especially physician, are to be examined, and some proposals for the reformation of the current regulatory regime are to be made. Main arguments of this article can be summarized as follows: First, the current regime which requires advance review of physician advertising as prescribed in article 56 (2) no. 9 of Medical Act should be reformed. It does not mean that the current interpretation of article 21 of the Constitution is agreeable. Though a commercial advertising is a way of communication and can be protected by article 21 (1) of the Constitution, it should not be under the prohibition of censorship prescribed by article 21 (2) of the Constitution. The Constitutional Court adopts the opposite view, however. It is doubtful that physician advertising needs some prior restraint, also. Of course, there exists severe informational asymmetry between physicians and patients and medical treatment might harm the life and health of patients irrevocably, so that medical treatment can be discerned from other services. It is civil and criminal liability for medical malpractice and duty to inform and not regulation on physician advertising, to address these differences or problems. Advance review should be abandoned and repelled, or substituted by more unproblematic way of regulation such as an accreditation of reviewed advertising or a self-regulation preformed by physician association independently from the Ministry of Health and Welfare or any other governmental agencies. Second, the substantive criteria for unfair physician advertising also should correspond that of unfair advertising in general. Some might argue that a learned profession, especially medical practice, is totally different from other businesses. It is performed under the professional ethics and should not persue commercial interest; medical practice in Korea is governed by the National Health Insurance system, the stability of which might be endangered when commercial competition in medical practice be allowed. Medical Act as well as the condition of medical practice market do not exclude competition between physicians. The fact is quite the opposite. Physicians are competing even though under the professional ethics and obligations and all the restrictions provided by the National Health Insurance system. In this situation, regulation on physician advertising might constitute unjustifiable restraint of competition, especially a kind of entry barrier for 'new physicians.'

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.64
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• pp.39-64
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• 2014

The object of International License Contract is technology. Technology is means to produce visible goods, which are human's intellectual creations such as Intellectual Property Right - patent, design, trademark- and Know-how. Unlike visible goods which decrease as being used, these technologies are possible to be produced expansively and develop additionally. Therefore, the way to make a contract of goods is a sales contract which transfers ownership while technology follows license contract which gives approval of use for a certain period. International license contract means that licensor has right to possess, allows licensee to use licensed technology for a fixed period and takes royalty. So there are various matters such as selection of the duration of a contract, confirmation of technology range, competition limitation, technique guidance and support, calculation of royalty, withholding tax between parties. This study examines licensor's grant of license and competition limitation. Intellectual property rights fundamentally give exclusive rights to the creator so the licensor use or dispose of his or her intellectual property rights at will. Technology transfer is possible through license contract because of this right. But licensor must exercise his or her intellectual property rights within a reasonable limit. It means, when licensor makes an unreasonable demand abusing his or her position, it is regarded as competition limitation clause and the deal itself may become null. Therefore, restraint on competition needs to be examined in detail as it influences on contract validity. Each country has their own competition laws for establishing a fair market order and inspection guide and guideline for judging whether there is any unfair act related to intellectual property rights. Judgment on intellectual property rights is subject the technology-introduced country's domestic laws and thus, contracting parties each need to precede opposite nation's domestic laws system.

• The Korean Society of Law and Medicine
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• v.20 no.3
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• pp.175-209
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• 2019

The bundled discounting which the dominant undertakings engage in is problematic in terms of competition restraint. Bundled discounts generally benefit not only buyers but also sellers. Specifically, bundled discounts usually costs a firm less to sell multiple products. In addition, Bundled discounts always provide some immediate consumer benefit in the form of lower prices. Therefore, competition authorities and courts should not be too quick to condemn bundled discounts and apply the neutral and objective standard in bundled discounting cases. Cascade Health v. Peacehealth decision starts ruling from this prerequisite. This decision pointed out that the dominant undertaking can exclude rivals through bundled discounting without pricing its products below its cost when rivals do not sell as great a number of product lines. So bundled discounting may have the anticompetitive impact by excluding less diversified but more efficient producers. This decision did not adopt Lepage case's standard which does not require the court to consider whether the competitor was at least as efficient of a producer as the bundled discounter. Instead of that, based on cost based approach, this decision said that the exclusionary element can not be satisfied unless the discounts result in prices that are below an appropriate measures of the defendant's costs. By adopting a discount attribution standard, this decision said that the full amount of the discounts should be allocated to the competitive products. As the seller can easily ascertain its own prices and costs of production and calculate whether its discounting practices exclude competitors, not the competitor's costs but the dominant undertaking's costs should be considered in applying discount attribution standard. This case deals with bundled discounting practice of multiple healthcare services by the dominant undertaking in healthcare market. Under the Korean healthcare system and public health insurance system, the price competition primarily exists in non-medical care benefits because public healthcare insurance in Korea is in combination with the compulsory medical care institution system. The cases that Monopoly Regulation and Fair Trade Law deals with, such as cartel and the abuse of monopoly power, also mainly exist in non-medical care benefits. The dominant undertaking's exclusionary bundled discounting in Korean healthcare markets may be practiced in the contracts between the dominant undertaking and private insurance companies with regards to non-medical care benefits.

• Journal of Auto-vehicle Safety Association
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• v.7 no.1
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• pp.7-12
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• 2015

NCAP(New Car Assessment Program) makes vehicle manufacturer improve safety performance through free competition and customers guarantee vehicle selection by providing information of vehicle safety. That's why it is important not only to meet the regulation, but also to cope with NCAP. EuroNCAP(European New Car Assessment Program) side tests have conducted by using Progressive MDB and Euro SID II in order to reproduce crash test between two vehicles over 10 years. However various researches report that Progressive MDB and Euro SID II do not reflect evolving vehicle design, impact performance and biofidelity of human. Therefore EuroNCAP has the plan to conduct AE-MDB side crash test using WorldSID which is more evolved from 2015 by replacing Progressive MDB and EuroSID II. Automobile manufacturers need to develop safety performance for new test closely. This paper is to find test set-up parameters which affect into dummy injury instead of restraint system and to research on its tendency. It is processed with mini and small car to know influence as changing vehicle size and also analyzed by DFSS(Design for six sigma) which is one of optimization tools. DFSS is vaildated by simulating CAE with L18 orthogonal array of 6 control factors adjustable as EuroNCAP requirement.

• Journal of Korea Society of Industrial Information Systems
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• v.13 no.5
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• pp.106-116
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• 2008

21 century is as time of infinite competition the knowledge base society where the creation knowledge and information become source of competitive power (Knowledge-based society) and the world-wide various nations leads and knowledge intensification of voice and existing industry of knowledge industry leadership grasp of competitive power high position security and world economy it concentrates a hazard national ability from new economic environment inside. Also, world economy the economic border collapsed with opening anger liberalization and the integration of world economy was accelerated and the restraint of advanced nation, pursuit of the late start developing country and competition from the enterprise for strategy helping each other back international market more were aggravating and information and knowledge with production element or the goods were wide in the economic whole and information knowledge revolution which circulates was developed and it followed hereupon and with the vitality where the knowledge base industry growth is new it rose to the surface.

• Asian Journal of Innovation and Policy
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• v.7 no.1
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• pp.207-234
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• 2018

A manufacturer of a durable good typically purchases supplies, including parts for assembly - that are also useful for repairs - from independent "original equipment suppliers" with which it contracts. The manufacturer is a branded monopolist of its final assembled product. To put into effect also a monopoly of the replacement parts, it must stipulate in its arrangements with independent suppliers of the parts that they not supply such patented parts to any other buyer. Durable good owners would then only be able to obtain their requirements of replacement parts from the same company that supplied the durable. This would amount to a tie-in of replacement parts to the direct purchase of new durables. And that describes the apparently widespread practice of automobile manufacturers in India, as exposed in a recent case before the Competition Commission of India (Samsher Kataria v Honda Siel Cars India Limited and others). Here, I will argue that such tie-in enabled automotive manufacturers to more fully appropriate consumer surplus, which induced them to lower the price of new cars, sell more cars and also sell more repair parts. The tie-in expanded the auto parts industry and promoted new entry. The main restraint on expansion of India's automotive manufacturing is not monopoly. It is government protection in the form of tariffs on automobiles and auto parts.

• The International Journal of Costume Culture
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• v.2 no.1
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• pp.31-42
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• 1999

The category killer that has been rapidly growing mainly in advanced countries since early 1990's, is a mew distribution model which aims for obtaining market controlling power by surpassing competing businesses in a specific area of products. The domestic situation of category killers is very different from that of advanced ones abroad since it has just been introduced into the Korean market. At the moment, there are only 10 or so companies operating in the market : Geopyung's , Taeheng's , Midopa's , of Sinsegye Department store, adn of Yerim International. The purpose of this study is to examine problems of domestic companies in the present market by analysing the operation status of category killers in domestic markets as well as foreign ones, and to suggest a counter-strategy of category killers for the distribution environment of the 21st century to improve the competitiveness of Korean distribution industry. The competitiveness of category killers lies above all in products lines. Category killers are equipped with the greatest number of products lines among those of competing businesses due to maximized product selections in an limited range. Another source of competitiveness may be found in balanced strategy positioning. That is to say, category killers are in a position where they can adjust policies towards any of the three purposes while aiming at them altogether : prices of discount stores, products range of specialty stores, and customer service level of department stores. It is also necessary for efficient store operation to use information technology such as electronic data interchange (EDI), electronic pose system(EPOS) and electronic funds transfer (EFTPOS). As for the cost structure, category killers can gain an advantage over other business since operating cost of various sections can be saved. There are, however, certain risks that category killers with strong competitiveness may influence on other businesses a great deal and even facilitate their decline. Yet it seems that the growth of category killers will be more viciously restrained by continuous challenges from other businesses. The distribution industry is supposed to develop through such competition and restraint.

• Journal of Arbitration Studies
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• v.20 no.1
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• pp.41-65
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• 2010

It is a matter for debate that which types of dispute may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. National laws establish the domain of arbitration. Each state decides which matters may or may not be resolved by arbitration in accordance with its own political, social and economic policy. In response to complexity and diversity of a social phenomenon, the dispute also is various, therefore can not be settled efficiently by means of court adjudication to which applies a law strictly. To overcome such problems we are going to seek to make use of arbitration. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. For the promotion of fair and free competition, it is increasingly wide-ranging antitrust legislation across the world. It is matter for debate what can an arbitral tribunal do when confronted with an allegation that the contract under which the arbitration is brought is itself an illegal restraint of trade or in some other way a breach of antitrust law. The underlying question is how to accommodate the conflicting congressional policies favoring resolution of private controversies by arbitration and encouraging private suits to protect the public interests served by the antitrust laws. It is necessary to inquire into the arbitrability of antitrust issues on case-by-case basis, because the types of them are quite diverse. If antitrust issues are the dispute in private laws and the contracting parties agreed to submit to arbitration disputes which have arisen or which may arise between them in the antitrust issues, the antitrust disputes are arbitrable. Not only international antitrust disputes but also domestic antitrust disputes are capable of being resolved by arbitration. When the public interests in the enforcement of antitrust legislation are asserted, it is possible to justify the annulment or the refusal of the recognition or the enforcement of an arbitral award that ignores public policy as a matter of it.

• Journal of Arbitration Studies
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• v.9 no.1
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• pp.291-322
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• 1999

The world of today faces a radical change, a new revolution, by the spread of the Internet. It is used not only for advertising but also for the exclusive rights in the field of information and communication, in add to the way of developing everyday our lives with world news, home-shopping, on-line education and so on. Actually, since the Internet Domain's Name(IDN) is unique over the world, the individual and the companies which provide information through the Internet have a keen competition to make a good IDN to memorize and organize all available information provided them. As a result, there are an increasing number of the cases where one company files suit against another for the validity of it's IDN so the policy to arbitrate and solute the cases is required. This paper is going to introduce the structure and the system of management for IDN. It will also discuss the efficient management of IDN, various case analysis of the dispute restraint and solutions, and the movement of improving the management procedure of IDN in WIPO. So we suggest to examine common disputes among IDN uses and solution methods for future problem at EC times. Therefore we have to establish the dispute solution system. Here are the two methods : one is that to establish a dispute solution organization. This organization which can conduct the new dispute solution procedure differs from the existing legislation system. The other is that to establish a dispute solution procedure i.e. the various dispute solution procedure for efficient dispute solution : council, inspection, mediation and arbitration. This procedure is conducted on-line due to features of the IDN disputes, also along with the current legislation system and the International dispute solution procedure. Because there is possibility the IDN disputes usually are connected with other countries. As there is no specific disputes solution procedure so far, we have to wait while development occurs that also striving to be coherent with and between the domestic and International solution procedure by helping to establish the International dispute solution procedure.