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The Unfair Trade Practices (“UTP Guidelines”) imposed by the Korea Fair Trade Commission(“KFTC”) refers to situations where trading conducted unfairly or unjustly and is likely to infringe competition in the market pursuant to the Monopoly Regulation and Fair Trade Act of Korea (“MRFTA”). It defines restrictions of competition and unfairness respectively, but there is no explanation about a relationship between the two. Nonetheless, other definitions of restrictions of competition referring to unfairness should be deemed a common standard which is expressed as ‘relevance to competitive order’ in the provision.

Other standards of unfairness should be content-based and, in principle, be complementary to the standard of restrictions of competition. In doing so, the illegality of the unfair trade practices can be understood in terms of the relationship with the competitive order. So even if it is categorized as an illegal act by the KFTC, a question of whether it is necessary to regulate the act under the MRFTA should be asked given competitive order at the judgment phase. To do this, the elements of competitive order shall be identified and then apply to an act and consider its negative effects especially in the competition market.

It is necessary to reconstruct the standard of unfairness which is the primary criterion of illegal conduct considering unfairness, market-friendly contents, and relations with the competitive order. It should consist of contents regarding market performance, such as performances that substantial harm or likely to harm on entering on enterprises or consumers’ competitive interests as a counterpart. The purpose of this is to differentiate it from private legal standards such as ‘unfairness’ or ‘anti-social order.’ Here, the competitive interests of consumers or companies may be deemed as a counterpart by directly protecting each other, or deemed as an ultimate recipient in case of being indirectly protected depending on what type of behaviors. In the case where the other party in a protection target, business-to-business and business-to-consumer relationships should be distinguished. And a business-to-business relationship is required to establish more sound criteria compared to the business-to-consumer relationship. In addition, in the case where the ultimate recipient’s impact is the protection target, a reasonable choice influence is examined by comparing consumers.