2016 The 5th Bar Examination Expert Review - Economic Law
 

 

Anbyeol Han, Attorney (Member of Law Firm) 
  

1. Overall Evaluation 

The case-type question of the 5th Korean Bar Examination in Economic Law can be evaluated as not deviating much from the pattern of the past in the field of antitrust and consumer law. In particular, the questions on the types and illegality of unfair concerted activities were within the range of what could be expected, and the abuse of dominance section, in relation to the specific types of unfair trade practices, was one of the topics that I have repeatedly expressed in my recent economic law lectures. In the end, the intention of the examiner in determining the type of unfair trade practice is to ask whether the candidate can logically reason and incorporate the facts in the case and how richly the candidate can present the logical basis for determining the illegality, and this part seems to be an important grading criterion for determining whether to get a high score. This is the type of case-type question that I have always emphasized, so I believe that most candidates were able to answer within the expected range. 

However, the 20-mark question on the extraterritorial application of antitrust laws may have been a bit of a surprise for candidates who had not paid attention to this part of the examination. However, since the question related to the extraterritorial application of the Fair Trade Act was only a question that briefly listed the applicability of the Fair Trade Act and the degree of evidence, it was actually a question of 'finding the clause', i.e., it could have been solved by finding specific evidence to evaluate the impact on the domestic market, centering on Article 2(2) of the Fair Trade Act, "This Act shall apply to acts that affect the domestic market even if they are committed outside the country." 

Furthermore, it would have been possible to achieve good marks if the candidates had seamlessly incorporated the specific facts of the case to demonstrate that the impact of a foreign anticompetitive concerted action on the domestic market is direct, substantial, and reasonably foreseeable, in accordance with the Supreme Court precedent (2012 Doo 13665). In the end, it was a mediocre question that confirmed the existing trend of the 5th Bar Examination's <Question 1> antitrust law. However, Question 3, which was worth 20 points, was worth 20 points, but considering the relative importance of Question 1 and Question 2 and the absolute amount of writing required, it seems a bit excessive to allocate 20 points to three small issues. 

In the field of consumer law, the typical expected issues related to the exercise of the 'right of withdrawal' and the judgment of unfair terms and conditions under the Terms and Conditions Regulation Act were also within the scope of the examinee's expectations, but in the part where the examinee had to start from the basic concepts of a telecommunications intermediary as a telecommunications seller and a telecommunications seller as an intermediary under the E-Commerce Act and describe the joint liability of a telecommunications intermediary (Question 2), it would have been difficult to develop logic easily without a thorough legal analysis. Also, in Question 3, which asked for possible measures under the law that can be taken by 'business operators' and 'heads of central administrative agencies' as emergency measures to protect consumer safety under the Consumer Basic Law, students may have had some difficulty in finding and describing the relevant provisions. In the area of consumer law, it is not only necessary to familiarize yourself with the basic concepts that can be tested in advance, but also to have a good grasp of the content and location of the relevant provisions, and to be able to organize the details according to the contents of the Act and the Enforcement Decree.  

In the end, as confirmed by the 5th Bar Exam, students should prepare for the economic law case-type questions in the future, believing that they will definitely appear, and prepare in advance for ① prohibition of abuse of dominant position, ② unfair joint behavior, and ③ unfair trade practices, and the basis for judging the illegality of unfair trade practices, and other contents should be prepared only in terms of familiarity with the types of acts and the basis for judging the illegality of unfair trade practices, and other contents may be tested in the case of small discussion questions that can be evaluated somewhat superficially, so a 'two-track' strategy is needed to prepare by organizing the location and brief content of the usual articles.  

In the case of consumer law, it is necessary to organize the requirements and restrictions on the exercise of the right of withdrawal under the Sale and Purchase Act, the Installment Transactions Act, and the Subsumption Act, and to review the location and content of the clauses in the Act and the Enforcement Decree in advance just in case. In view of the fact that the discussion of the Terms and Conditions Regulation Act will always appear, it is necessary to thoroughly prepare and prepare for the following topics: (1) the meaning and encompassing power of the terms and conditions; (2) the general theory related to the content, scope, and interpretation control related to the obligation to specify and explain the terms and conditions under the Terms and Conditions Regulation Act; and (3) the most important part is the ability to specify the invalidity of the terms and conditions under the Terms and Conditions Regulation Act according to the given facts and provide logical grounds. In addition, questions that ask for an understanding of representative consumer protection policies under the Consumer Basic Law and the procedures and legal requirements for obtaining remedies for damages have been identified as a distinct trend in the past examinations and the fifth version of the examination, so even if it is only a preparation for future discussions, if students prepare in advance for contents related to consumer safety and remedies for damages, economic law will continue to be a risk-manageable option that can avoid serious 'disasters'.  

2. Question 1  

Question 1 already presupposes 'consensus'. Therefore, there is no need to refer to the presumption of agreement in Article 19(5) of the Fair Trade Act as an unnecessary generalization. Among the types of unfair joint behavior under Article 19(1) of the Act, the case should be approached as a market division agreement under Article 19(4). For reference, the KFTC's Unfair Joint Conduct Examination Criteria also lists "establishing a trading area (expressed as a sales area in the survey) for each business" as a typical example of Article 4. It is important to note that the above issue should not be lumped into Article 9, "Interfering with the business activities of other businesses." Since Article 9 is a kind of catch-all provision that applies to behaviors other than Articles 1 through 8, it is sufficient to approach the type of behavior directly under Article 4 first. Regarding illegality, the author's usual narrative framework of "plurality of undertakings → existence of agreement → restriction of competition" is maintained, but in this case, the scope of the restriction of competition is very wide, as Company A's market share in the domestic market is 40%, and it is difficult to expect any positive functions such as increased efficiency that can be achieved through the agreement in addition to the effect of restricting competition between undertakings in light of the content and nature of the joint conduct such as a survey, The part of the agreement that directly restricts transactions between competing operators may lead to a deterioration in consumer benefits such as the disappearance of intra-brand competition, the high cost of opening an agency, and the low likelihood of entry of new operators due to the 10-year contract period, and the high risk that the survey's anticompetitive effects may be stuck for a long time. 

In the unfair trade practice section, this should be included as an abuse of dominance, and the specific type of behavior should be approached as 'forced purchase'. In this case, the first step should be to determine whether there is a dominant position, and the grounds for recognizing the dominant position and the general theory of related precedents should be set out in order, and if the dominant position is recognized, the second step should be to determine whether the specific conduct is exceptionally illegal and requires the intervention of antitrust law. In light of the fact that sales have been plummeting since 2014 and the ongoing recession, and the fact that Company A's tire inventory exceeds the appropriate level, it does not appear that the dealers have a clear incentive to increase sales. Nevertheless, the fact that all sub-distributors were required to purchase an additional 5% of the previous month's orders should be viewed as a typical example of coercion (pushing) in the abuse of dominance, as the sole purpose is to remove inventory and there is no willingness of the counterparty to purchase. As for the issue of offshore application, even if a foreign company does not have any subsidiaries or branches in Korea and the agreement itself is made in a foreign country, it is sufficient to organize the logic by setting Article 2(2) of the Act as the main premise, considering that the content of the agreement restricts the competition of sub-distributors in the domestic market, Company A's domestic market share, relationship with exclusive agents, and the content of the agreement itself have a direct impact on Korea.  

3. For question 2 

For question 2, you can present the legal basis for exercising the right of withdrawal under the Electronic Commerce Act (Act on Consumer Protection in Electronic Commerce, etc.), and in the case of the case, you can make it clear that despite the fact that the right of withdrawal can be exercised by meeting the requirements of the law by incorporating the facts that can be exercised, the contents of the survey terms and conditions that restrict the withdrawal of the subscription are invalid because they are unfavorable to consumers based on the one-sided nature of the compulsory regulation. In the case of a question that asks about the unfairness of the terms, there is no need to discuss whether it is a term or not, as the question already assumes that it is a term, and the basis of the judgment and the legal provision for invalidity (Article 11(1) of the Act on the Regulation of Terms and Conditions) should be approached according to the core of the question, which is whether it is unfair. It seems that there are probably quite a few cases where the examinees have approached Article 9(1) of the Terms and Conditions Regulation Act, but in light of the KFTC's judicial precedents and legal provisions, it is judged that Article 11(1) is a more direct invalidation ground).  

In the case of Company B, the operator of a shopping mall that is an e-commerce intermediary under the E-Commerce Act, it should be clearly stated whether the information about the vendor provided by the e-commerce intermediary is different from the facts in light of the fact that the information provided by the e-commerce intermediary (such as the contact information of the vendor) is not contacted, and if so, the e-commerce intermediary is liable to compensate the consumer for the damage caused by the e-commerce intermediary.  


In the case of a problem related to consumer damage, based on the fact that the survey has already confirmed that the product contains ingredients that are fatally harmful to the human body, the main contents of the recommendations and orders that the central administrative agency can take, such as the obligation to voluntarily collect the product, and the contents of the collection and destruction of the product, should have been summarized in accordance with the provisions of the Act and the Enforcement Decree as measures to be taken by Company C under the Consumer Basic Act. In this case, the part to pay attention to is not only the verbatim copying of the legal provisions, but also the smooth narrative ability to conclude by incorporating the specific facts shown in the questionnaire in consideration of the side explanations and institutional significance of each content, which can lead to high scores, so it is expected that such preparation should be sufficient in general. Economic law is a subject that will be of great benefit to you as a practicing lawyer in the future, and your hard work in organizing economic law during the examination period will not be in vain. I would like to conclude this review by saying that the fruits of your efforts will certainly remain a good nourishment for you to be a good lawyer in the future.