Should Intent Be a Separate Element of an Abuse of Market Dominance?

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Hyungbae Kim, Jan 27, 2008

In the history of Korean competition law enforcement, the decision of the Korean Supreme Court in the refusal to deal case, POSCO, is a milestone in market dominance abuse cases (a concept similar to monopolization under U.S. antitrust law). On November 22, 2007, the Supreme Court held that evidence of specific intent, or purpose, and anticompetitive effects must be proven for there to be a violation of abuse of market dominance. The Court further held that the intent or purpose of maintaining or enhancing dominant position in the relevant market could be presumed in the event that anticompetitive effects are proven. Despite its historical significance in the treatment of market dominance cases in Korea, the judgment leaves something to be desired and its pros and cons are debated among economists, practitioners, and government officials.

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