시장지배적 사업자의 특수한 책임에 관한 연구

학위논문 (석사)-- 서울대학교 대학원 : 법과대학 법학과, 2019. 2. 이봉의.본 논문은 공정거래법상 남용규제의 대상인 시장지배적 사업자의 특수한 책임에 관한 연구이다. 공정거래법 법문에는 시장지배적 사업자의 특수한 책임에 관한 명시적 정의가 없으며, 이에 따라 우리나라에서는 이에 관한 별도의 논의도 이루어진바 없다. 그러나 우리와 남용규제의 법리가 유사하다고 평가되는 유럽의 경우 1979년의 Hoffmann-La Roche 판결 이후 지금까지 반복적으로 시장지배적 사업자에 대하여 시장에서 더 이상 경쟁조건을 악화시키지 않을 보다 높은 주의의무인 특수한 책임을 긍정하고 있고, 2009년 제정된 유럽 집행위원회의 배제남용에 관한 집행지침에서 특수한 책임의 개념을 수용하고 있다. 이에 본 연구는 공정거래법 해석론으로도 시장지배적 사업자의 특수한 책임을 인정할 수 있을 것인지 및 나아가 시장지배적 사업자에 대하여 특수한 책임을 인정할 수 있는 근거는 무엇인지를 규명함을 목적으로 한다. 이를 위하여 본 논문은 먼저 공정거래법상 시장지배적 지위 남용행위 규제의 목적이 무엇인지를 밝힌다. 그 과정으로 우선 우리나라의 남용규제를 개관하고, 제도 시행 이후 그 간의 집행실적을 살펴본다. 그리고 시장지배적 지위 남용행위에 관한 최초의 대법원 전원합의체 판결인 2007년 포스코 판결의 판시 내용을 심도있게 소개하고 이를 평가한다. 또한 국내법적 검토만으로 남용 규제의 목적을 규명하는데 충분하지 않으므로 대표적으로 미국, 유럽연합 및 독일의 남용규제를 개관하고 각 입법례별로 남용규제의 목적을 어떻게 이해하는지에 관하여 고찰한다. 다음으로 시장지배적 사업자의 특수한 책임이 유럽에서 어떻게 도입되고 구체화되었는지에 관하여 살펴본다. 구체적으로는 유럽 법원의 Hoffmann-La Roche 판결(1979), Michelin I 판결(1983), British Airways 판결(2007) 및 Intel 판결(2017)의 판시 내용 및 남용의 개념 등에 관한 유럽 집행위원회의 배제남용에 관한 집행지침을 소개한다. 이후에 특수한 책임이 유럽에서 수용되게 된 이론적 근거가 되는 독일의 질서자유주의에 관하여 살펴보고, 우리 법 해석에서도 질서자유주의적인 해석이 유효함을 밝힌다. 이어서 특수한 책임이 경쟁법적으로 어떠한 함의를 가지고 있는 것인지 살펴본다. 먼저 그 법적 성격에 관한 논의를 소개하고 남용행위의 개념에 비추어 우리나라 공정거래법 해석론으로도 위법성 요소로 해석함이 타당함을 입증한다. 그리고 이러한 해석이 책임의 크기가 지배력의 크기에 비례할 수 있게 되며, 효과중심적 접근법과도 조화를 이룰 수 있음을 밝힌다. 위와 같은 논의를 바탕으로 우리나라의 남용규제 실무에 대한 비판적 검토를 진행한다. 구체적으로 공정거래위원회의 오라클 사건 결정(2015), 법원의 포스코 판결(2007), 농업협동조합 판결(2009) 및 이베이지마켓 판결(2008)을 분석하고 각 사업자별로 특수한 책임이 인정될 경우 어떠한 결론이 도출 될 수 있는지 분석하였다. 마지막으로 이상의 논의를 전제로 공정거래법 해석론으로도 충분히 시장지배적 사업자의 특수한 책임을 인정할 수 있으며, 이를 명확히 하기 위하여 시장지배적 지위 남용행위 심사지침에 객관적 개념으로서의 남용행위의 정의규정 및 특수한 책임에 관한 내용을 담을 것을 제안하였다. 이 같은 노력은 사업자의 행위준칙을 명확히 하는 측면에서도 의미가 있으며 법원의 포스코 판결 이후 위축된 공정거래위원회의 시장지배적 지위 남용행위 집행 태도를 재고하는데 도움을 줄 수 있다는 점에서 의미가 있다.This thesis is a study on special responsibility of dominant undertaking subject to regulations on abuse under the Monopoly Regulation and Fair Trade Act(hereinafter referred to as the Korean competition law).T here is no explicit definition of special responsibilities of dominant undertaking in the Korean competition law, therefore any discussion on this issue has not been made in Korea. However, in Europe, where the laws of abuse are considered similar to ours, special responsibility of the higher duties of care not to aggravate the competition in the market has been accepted since the judgement of Hoffmann-La Roche was made in 1979 and the concept of special responsibility was admitted in the Guidance on the Commissions enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, which was established in 2009. This study is aimed to find out whether the special responsibility of dominant undertaking would be allowed by interpreting the Korean competition law and, in turn, why the special responsibility of dominant undertaking is allowed. First of all, this thesis identifies the purpose of regulating abuse of market dominant position under the Korean competition law. Following this, we will first review the country's abuse regulations and the performance of its implementation since the system of abuse regulations started. It also provides an in-depth introduction and assessment of the 2007 POSCO decision, which was made on the abuse of market dominant position by the first full bench of the Supreme Court of Korea. Also, the review of domestic laws is not sufficient to analyze the purpose of the abuse regulation, so we deal with the abuse regulations in the United States, the European Union and Germany, and discuss how to understand the purpose of the abuse regulations for each legislation. Next, we look at how special responsibility of dominant undertaking has been introduced and specified in Europe. In detail, we introduce the European Court's judgement of Hoffmann-La Roche (1979), Michelin I (1983), British Airways (2007), Intel (2017) and the concept of abuse under the Guidance on the Commissions enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings. Later, we look at Germany's ordo-liberalism as a theoretical basis for which special responsibility was accepted in Europe, and explain our law can be interpreted effectively by ordo-liberalism. We then discuss what special responsibility means in Korean competition law. First, we introduce a discussion on the legal nature of special responsibility and then prove it reasonable to consider special responsibility as the factor of illegality under Korean competition law. We also show that this idea allows the magnitude of responsibility to be proportional to the magnitude of control and can be harmonized with an effect-based approach. Based on the above discussions, a critical review of Korea's practice of regulating abuse is conducted. Specifically, the Fair Trade Commission's decision on Oracle case (2015), the court's decisions on POSCO (2007), the Agricultural Cooperative Federation (2009) and the eBayGMarket (2008) are analyzed and what conclusions could be reached if special responsibility was applied to each enterpriser. Finally, above discussions conclude that special responsibility of dominant undertakings can be fully admitted through interpreting Korean competition law and I proposed that the objective definition of abuse and the content of special responsibility should be included in the guideline on examination of abuse of market dominant position for clarification. These efforts are meant to clarify the standard for the conduct of the enterpriser and to help reconsider the Fair Trade Commission's enforcement for abuse of market dominant position, which has shrunk since the court made the decision on POSCO.제 1 장 서론 1 제 1 절 연구의 목적 1 제 2 절 연구의 범위와 방법 3 제 2 장 시장지배적 지위 남용규제의 목적 6 제 1 절 시장지배적 지위 남용규제 개관 6 1. 남용규제의 법적 근거 6 2. 공정거래법상 시장지배적 지위 남용규제의 특징 8 3. 남용행위의 분류 9 4. 공정거래법상 남용행위의 분류 10 제 2 절 시장지배적 지위 남용규제의 목적 11 1. 서언 11 2. 공정거래법상 남용규제의 목적 11 제 3 절 비교법적 검토 21 1. 미국 독점금지법의 태도 21 2. 유럽 경쟁법의 태도 26 3. 독일 경쟁제한방지법의 태도 30 제 4 절 소결 32 제 3 장 시장지배적 사업자의 특수한 책임 35 제 1 절 구체화 과정 35 1. 유럽 법원의 판결을 통한 수용·발전 35 2. 유럽 집행위원회의 입장 45 3. 정리 45 제 2 절 특수한 책임의 이론적 배경 46 1. 이념적 배경 - 질서자유주의 46 2. 법적 배경 49 제 3 절 특수한 책임의 경쟁법적 함의 50 1. 법적 성격 51 2. 지배력의 크기와의 상관관계 55 3. 효과중심적 접근방식과의 부조화 여부 56 4. 소결 57 제 4 장 우리나라 실무에 대한 비판적 검토 59 제 1 절 서언 59 제 2 절 심결례 및 판례 검토 59 1. 심결례 검토 59 2. 판례 검토 62 3. 소결 69 제 3 절 입법론 등 제도 보완 사항 71 1. 심사지침 개정 검토 71 2. 포스코 판결의 제한 노력 73 제 5 장 결론 75 참고문헌 76 Abstract 80Maste

잊지 말라 승냥이 미제를! : 북한 포스터 속 드러난 반미주의

인류학과 "북한의 인류학" 수업 수강생들이 제작한 미니

Efficacy of submucosal injection of hyaluronidase after mandibular third molar surgery: a randomized controlled trial

Objectives: This study aimed to investigate the efficacy of postoperative submucosal injection of hyaluronidase (HUD) for reducing sequelae and quality of life (QOL) after mandibular third molar (M3M) surgery. Materials and methods: Participants with bilateral impacted M3M underwent surgical extraction with a split-mouth randomized controlled study design. M3M were removed by the same surgeon in 2 sessions, one a control and the other experimental. Submucosal injection of HUD was performed in the experimental session and submucosal injection of saline in the control session. Mouth opening, facial swelling, and pain intensity were measured before surgery, and then 2 and 7 days after surgery. The QOL of participants following surgery was evaluated by means of a patient-centered outcome questionnaire (PCOQ). Results: A total of 36 patients was included in the final data analysis. There was a significant reduction in the maximal mouth opening and postoperative pain in the experimental side at the 2 and 7 days after surgery (P<0.05), and a remarkable difference in facial swelling was reported on the experimental side 7 days after surgery (P<0.05). The PCOQ demonstrated that participants reported less pain and swelling on the experimental side. Conclusion: The present study provides clinical evidence that submucosal administration of HUD immediately after M3M surgery reduced postoperative discomfort and improved patients' QOL.ope

Renal masses in end-stage renal disease patients on dialysis

Renal masses in end-stage renal disease patients on dialysisope

A Case of Escherichia Coli Sternoclavicular Septic Arthritis

Septic arthritis of the sternoclavicular joint is a rare condition. The predisposing risk factors include intravenous drug abuse, subclavian vein catheter placement, diabetes mellitus and trauma. Delayed or inadequate management can lead to irreversible joint damage with subsequent disability, even death. We report a 48-year-old female patient who presented with right sternoclavicular joint swelling and right shoulder pain. Magnetic resonance imaging of the sternum showed swelling of the right sternoclavicular joint with gadolinium enhancement. Synovial fluid and bone tissue culture revealed Escherichia coli (E.coli), and confirmed the diagnosis of sternoclavicular septic arthritis. She was successfully treated with surgical debridement and ciprofloxacin without recurrence. This is the first case report of E.coli sternoclavicular septic arthritis in Koreaope

Perforators Detected in Computed Tomography Angiography for Anterolateral Thigh Free Flap: Am I the Only One Who Feels Inaccurate?

Background: The number, location, and pattern of perforators in anterolateral thigh(ALT) flap vary and predicting them preoperatively will aid in reconstructing complex head and neck defects. This article suggests guidelines for utilizing CTA imagery to predict perforators of ALT-free flaps. Methods: We retrospectively analyzed 53 Korean patients who underwent reconstruction with ALT flap in our department from March 2021 to July 2022. The location, course, origin, and pedicle lengths predicted in CTA and confirmed in the operation field were recorded and compared. Results: Among the 85 intraoperatively-found perforators, 79 were also identified in CTA. Six perforators unidentified in CTA were newly found intraoperatively. The positive predictive value of CTA for the perforator was 100%, with a sensitivity of 79/85 = 92.9%. Of the 79 perforators depicted by the CTA for the flap, CTA and intraoperative findings for the course were consistent in 52 cases, a 9.6 mm median discrepancy being noted between the actual location and CTA. Conclusions: The overall pattern or location of perforation was not significantly different between the two, although some differences were observed. It is suggested that the addition of Doppler imaging, in conjunction with CTA, can aid in perforator detection and help minimize such discrepancies.ope

Discovery of DiPeptidyl Peptidase-4 Gene Variants and the Associations with Efficacy of Vildagliptin in Patients with Type 2 Diabetes - A Pilot Study

Background: The dipeptidyl peptidase-4 (DPP4) inhibitors have become widely used antidiabetic medication. They control glycemia by interacting with serum DPP4 to interfere catalyzation of incretins. The aim of this pilot study was to discover the DPP4 polymorphisms that could affect the efficacy of vildagliptin, a DPP-4 inhibitor in diabetic patients. Methods: Genetic variations in DPP4 were identified in 48 patients with type 2 diabetes who received vildagliptin treatment at least 12 weeks following metformin monotherapy. Luciferase assay was performed to estimate the effect of the regulatory single nucleotide polymorphism (SNP) on expression of DPP4. Results: Eight tagging SNPs were genotyped in a sample of 24 patients. Additional sample of 24 patients was used to discover further regulatory SNPs and coding SNPs. In all 48 patients, responders (degree of HbA1c and/or fasting glucose level decrease greater than 10% of baseline after 12 weeks of vildagliptin add-on treatment) did not show any significant difference in selected six DPP4 polymorphisms from non-responders. DPP4 expression was not different according to g.-234A/C in luciferase assay. Conclusion: Our pilot study could not find any significant genetic variant which is associated with vildagliptin response in patients with type 2 diabetes. Further studies in large population are warranted.ope

Potential association between coronary artery disease and the inflammatory biomarker YKL-40 in asymptomatic patients with type 2 diabetes mellitus.

BACKGROUND: Inflammation plays an important role in coronary artery disease from the initiation of endothelial dysfunction to plaque formation to final rupture of the plaque. In this study, we investigated the potential pathophysiological and clinical relevance of novel cytokines secreted from various cells including adipocytes, endothelial cells, and inflammatory cells, in predicting coronary artery disease (CAD) in asymptomatic subjects with type 2 diabetes mellitus. METHODS: We enrolled a total of 70 asymptomatic type 2 diabetic patients without a documented history of cardiovascular disease, and determined serum levels of chemerin, omentin-1, YKL-40, and sCD26. We performed coronary computed tomographic angiography (cCTA) in all subjects, and defined coronary artery stenosis ≥ 50 % as significant CAD in this study. RESULTS: Subjects were classified into two groups: patients with suspected coronary artery stenosis on cCTA (group I, n = 41) and patients without any evidence of stenosis on cCTA (group II, n = 29). Group I showed significantly higher YLK-40 levels and lower HDL-C levels than group II (p = 0.038, 0.036, respectively). Levels of chemerin, omentin-1, and sCD26 were not significantly different between the two groups. Serum YKL-40 levels were positively correlated with systolic/diastolic BP, fasting/postprandial triglyceride levels, and Framingham risk score. Furthermore, YKL-40 levels showed moderate correlation with the degree of coronary artery stenosis and the coronary artery calcium score determined from cCTA. In multivariate logistic analysis, after adjusting for age, gender, smoking history, hypertension, and LDL-cholesterol, YLK-40 levels showed only borderline significance. CONCLUSIONS: YKL-40, which is secreted primarily from inflammatory cells, was associated with several CVD risk factors and was elevated in type 2 diabetic patients with suspected coronary artery stensosis on cCTA. These results suggest the possibility that the inflammatory biomarker YKL-40 might be associated with coronary artery disease in asymptomatic patients with type 2 diabetes mellitus.ope

Epicardial adipose tissue thickness is an indicator for coronary artery stenosis in asymptomatic type 2 diabetic patients: its assessment by cardiac magnetic resonance.

BACKGROUND: We used cardiovascular magnetic resonance (CMR) to investigate the association between epicardial adipose tissue (EAT) thickness and silent myocardial ischemia, as well as coronary artery stenosis, in asymptomatic type 2 diabetic patients. METHODS: The study included 100 type 2 diabetic subjects (51 male and 49 female; mean age: 56 ± 7 years). Silent myocardial ischemia, as determined by CMR, was defined as evidence of inducible ischemia or myocardial infarction. Signal reduction or stenosis of ≥ 50% in the vessel diameter was used as the criteria for significant coronary artery stenosis on coronary magnetic resonance (MR) angiography. RESULTS: EAT thickness was positively correlated with body mass index (BMI), waist-to-hip ratio, systolic blood pressure, postprandial glucose, fasting/postprandial triglyceride (TG), serum glycated hemoglobin (HbA1c) level, and homeostasis model assessment of insulin resistance (HOMA-IR) score. Significant coronary artery stenosis was found in 24 patients, while 14 patients had silent myocardial ischemia in CMR (1 with silent myocardial infarction, 11 with inducible ischemia, and 2 with both). EAT thickness was greater in patients who had coronary artery stenosis (13.0 ± 2.6 mm vs. 11.5 ± 2.1 mm, p = 0.01), but did not differ between the subjects with or without silent myocardial ischemia on CMR images (12.8 ± 2.1 vs. 11.7 ± 2.3 mm, p = 0.11). Multivariate logistic regression analysis indicated that EAT thickness was an independent indicator for significant coronary artery stenosis after adjusting for traditional risk factors (OR 1.403, p = 0.026). CONCLUSIONS: Increased EAT thickness assessed by CMR is an independent risk factor for significant coronary artery stenosis in asymptomatic type 2 diabetes. However, EAT thickness was not associated with silent myocardial ischemia.ope

식이유도 비만 쥐에서 lithospermic acid-B 가 갈색지방세포의 전환분화에 미치는 영향

Dept. of Medicine/석사Background: Obesity is becoming a global epidemic in both children and adults, and energy balance is important for developing obesity. Brown adipose tissue (BAT) contributes to the control of body temperature and energy expenditure, and recently a new concept of transdifferentiation of two kinds of adipocytes – brown adipocytes and white adipocytes – induced by physiologic stimuli to meet different energy partitioning biological demands. Lithospermic acid-B (LAB), tetramer of caffeic acid, the most abundant component in aqueous extracts of the Salvia species and recently is known to have antioxidative and antifibrotic effects. However, little is known about the effect of LAB on brown adipose tissue. The present study was undertaken to examine the effects of LAB treatment on the transdifferentiation of brown adipocyte to white adipocyte-like cell in high-fat diet mice and the further protective effect against diet-induced obesity. Materials and Methods: Male C57BL/6 mice (n = 18) were separated into three groups: (1) fed with chow diet and vehicle treated; (2) fed with high-fat diet and vehicle treated; (3) fed with high-fat diet and LAB (20mg/kg/day) treated. Body weights and food intakes were measured weekly and random glucose levels were checked every 4 weeks. After 16 weeks, fasting plasma glucose, leptin and adiponectin levels were measured in the morning after an overnight fast and insulin tolerance test was done. Histological examination and morphometric analysis of brown adipose tissues were performed. Immunohistochemistry, immunofluorescence, western blot analysis and RT-PCR for UCP-1 expression were performed. Results: After 16wks, LAB treatment did not affect HFD-associated alterations in body weight, food intake, fasting glucose level, and insulin resistance. However, we observed the morphometric changes indicating preservation of characteristics of brown adioicytes in LAB treated group. And LAB attenuates the transdifferentiation of brown adipocyte to white adipocyte-like cell and maintains the expression of UCP-1 at both protein and mRNA levels in mice fed a high-fat diet. However, the serum levels of leptin and adiponectin were not different. Conclusions: These results suggest that the effect of LAB to inhibit the transdifferentiation of brown adipocyte in animal fed high-fat diet, is associated with the pathophysiology of obesity and related to therapeutic strategies of anti-obesity and/or anti-diabetic drugs.restrictio