A Study on the Concept of Superior Bargaining Position in Online Intermediary Platforms

The recent financial settlement crisis involving TMON and WeMakePrice has reaffirmed the importance of ensuring financial soundness and establishing a transparent settlement system for online platforms. In response, the Korea Fair Trade Commission (KFTC) is considering amending the Act on Fair Transactions in Large Retail Business to deem online intermediary platforms as large retail business entities, thereby imposing various obligations related to sales revenue settlement. While this amendment, centered on online intermediary platforms, raises several concerns, the most fundamental issue is the recognition of superior bargaining position held by online intermediary platform operators. For the Act on Fair Transactions in Large Retail Business, which serves as a special law governing unfair trade practices under the Fair Trade Act, to apply, such a position must first be acknowledged. If recognized, this classification would subject platform operators to stricter regulatory measures than those imposed under the Fair Trade Act, thereby granting suppliers and other transaction counterparts stronger protection through stringent administrative and criminal sanctions. Despite the critical importance of determining whether a superior bargaining position exists, both the KFTC and the courts have traditionally relied on a somewhat ambiguous standard, defining it as a “relatively superior position” or at least one capable of significantly influencing the counterparty’s business activities.” Furthermore, in practice, once an entity qualifies as a large retail business entity, the KFTC and the courts have tended to readily recognize its superior bargaining position without further assessing the characteristics of suppliers or the nature of traded goods. This suggests a de facto presumption of superior bargaining position in cases involving large retail business entities. This study examines whether the criteria for determining superior bargaining position in offline retail markets can be directly applied to the online retail sector. To do so, it compares the concept of bargaining position under the Fair Trade Act with the superior bargaining position under the Act on Fair Transactions in Large Retail Business and analyzes the implications of the recent Seoul High Court ruling (2024Nu36102, rendered on February 1, 2024) that addressed this issue in the context of the online retail market.