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The purpose of this paper is to examine whether the unilateral regulations under the Korean competition law, namely the Monopoly Regulation and Fair Trade Act (“MRFTA”), have converged or deviated from the new international competition law. Therefore, this paper is divided into three parts: (1) investigation of the meaning of “anti-competitiveness” and “fair trade impediment” as legal grounds to regulate unilateral actions under the Korean competition law; (2) case brief and analysis on POSCO case, and (3) review of the POSCO and its factors that affect its evaluation.

Article 2 of the Paragraph 8-2 defines substantial restraints on competition. The term consists of two elements: one that affects the competition process and the other that affects the outcome of the competition. Article 23 of the MRFTA has requirements of fair trade impediments which standard is broader than that of competition restriction.

The Korea Fair Trade Commission (“KFTC”) ordered corrective measures against POSCO for its abuse of dominance when POSCO refused to supply hot coils trying to enter the domestic cold-rolled steel market. The KFTC’s resolution is based on a survey of POSCO’s competitive disadvantage, which is in effect estimated based on specific disadvantages and the intention of POSCO to restrict competition. The effects of competition restrictions are not specifically recognized. Although the Seoul High Court affirmed the KFTC’s decision, at the appealing stage, the reasoning of its judgment differs in that it has to prove its disadvantage in competition and its effectiveness in limiting competition, even though the degree of evidence is low or presumed to be true. On the contrary, the Supreme Court rendered the judgment, reversing the case to the Seoul High Court. The majority opinion of the Supreme Court held that the intention or purpose of competition restriction should be proven as well as an act that affects competition restriction.

The KFTC’s method is similar to that of German concept of obstruction and abuse. In comparison, the Seoul High Court's decision seeks to discover the meaning of exclusion and abuse, but it does not succeed because it adopts the rule of presumption for the effect of restricting competition. With regard to the majority opinion of the Supreme Court, many critics have considered it an effects-based approach.

If the effects-based approach focuses on the competition process in terms of competition analysis, the effects-based approach focuses on the outcome of the competition. Moreover, the analysis will focus on the effects of foreclosure and damage to consumers. Although the Supreme Court’s ruling on the process and results is ambiguous, the legal standards established by the Supreme Court are expected to cover abuse of competition law in the international aspect.