NAVER Shopping (2025)
(2025. 10. 30. 추가: 이 글은 일부 내용 수정, 보완 후 Truth on the Market에 실렸습니다. 관심있으신 분들은 이 포스트 내용보다는 아래 발표된 글의 내용을 참고해주시기 바랍니다. Sangyun Lee, ‘Korea’s NAVER Shopping: A Misguided Replica of the EU’s Google Shopping Decision?’ (Truth on the Market, October 28, 2025), https://truthonthemarket.com/2025/10/28/koreas-naver-shopping-a-misguided-replica-of-the-eus-google-shopping-decision/)
알만한 분들은 아시겠지만, 지난 16일 네이버 쇼핑 사건 대법원 판결이 나왔습니다(2023두32709). 결론만 말씀드리면, 공정거래위원회(공정위)의 패소입니다. 결과에 동의하지 않으시는 분도 있을 수 있겠지만, 저는 대체로 수긍이 가는 판결이었습니다. 개인적으로는 '공정위가 섣불리 유럽 따라하다가 무리한 처분을 내렸다'는 걸 인정한 현명한 판결이었다고 생각합니다. 유럽사법재판소의 판결 취지도 오히려 더 잘 반영했고요.
그동안 꽤 관심을 두었던 사건이었기에(이전에 제가 쓴 한국어 블로그 포스트는 이곳, 검색 중립성 논문은 이곳에서 참고하세요) 판결 소식이 나온 뒤 며칠간 알음알음 수소문해서 정보를 모아 어제 19일 링크드인에 아티클을 한편 올렸었습니다. 어제까지만 해도 대법원 판결문이 공개된 상황이 아니었기 때문에(고등법원 판결은 영원히 공개하지 않을 생각인가 보네요) 아래 아티클은 비교적 초기의 확정되진 않은 생각들이라고 할 수 있겠습니다만, 오늘 공개된 판결문을 보았는데도 일단 제 생각이 크게 바뀌지는 않는 것 같습니다. 불공정거래행위에 있어서는 좀 더 유연했으면 싶은 생각도 들지만 전반적으로 저는 수긍이 가는 판결문이었습니다.
물론 앞으로 국내외 동료들과 의견을 주고 받으면서 생각들을 좀 더 정리하고 국외 블로그, 학회 발표, 저널에 발표해나갈 생각입니다. 먼저 가까운 미래에 블로그(Kluwer나 TOTM 등)에 투고하고 이곳에도 소식을 전할 예정이지만 혹시 그전까지 맛보기 내용이 필요하신 분들은 아래 글을 참고하시기 바랍니다. 감사합니다.
(Citation: Sangyun Lee, 'Self-Preferencing on Trial in Korea: The Supreme Court Rules in NAVER Shopping' (Oct 19, 2025) https://lnkd.in/gVkgXMQB)
Self-Preferencing on Trial in Korea: The Supreme Court Rules in NAVER Shopping
Sangyun Lee
October 19, 2025
On October 16, 2025, in the long-awaited NAVER Shopping case (arguably, a misguided replica of Google Shopping in the EU), the Supreme Court of Korea delivered a resounding defeat for the Korea Fair Trade Commission (KFTC) (2023Du32709). The Court found no violation of Korean competition law (Monopoly Regulation and Fair Trade Act, MRFTA) through the local search platform’s self-preferencing, overturning both the agency’s decision and that of the Seoul High Court.
Case overview
Regarding factual backgrounds and details of the KFTC's and the Seoul High Court's decisions, please see my previous piece: https://ssrn.com/abstract=4457860. To put it simply, only for the sake of understanding the Court’s decision, a quick summary is as follows:
NAVER Corp, a search platform that was (then) dominant in the markets for general search and comparison shopping services in Korea, was accused of abusing its dominance in the e-commerce marketplace by favoring third-party sellers using its own e-commerce service over others in the search results of its comparison shopping service.
In January 2021, the KFTC sanctioned the conduct, imposing a corrective order and a fine of approximately KRW 26.7 billion (Decision No. 2021-027), invoking the prohibitions against (i) discrimination as an abuse of dominance (for restricting competition) (Art. 5, MRFTA), (ii) discrimination as an unfair trading practice (for lessening competition) (Art. 45(2), MRFTA), and (iii) deceptive inducement (another form of unfair trading practice) (Art. 45(1)(4), MRFTA).[1] In December 2022, on appeal, the Seoul High Court upheld the KFTC's decision (2021Nu36129). And as noted above, the Supreme Court recently overturned the lower court's decision and ruled against the KFTC.
Here are several remarkable points from the Supreme Court's decision.[2]
Abuse of dominance
The first point to note is the Court’s strong, explicit, and repeated rejection of a general obligation of 'equal treatment' under Korea's competition law. In this case, the Court, on three occasions (partly because, technically, three different legal provisions were applied), made it clear that even a dominant platform operator is not required to treat its own products or services equally with those offered by other businesses (unless other laws provide a legal basis for such treatment).
Secondly, it is notable that this decision substantially curtailed the role of intent or object in establishing abuse of dominance. Since the 2007 POSCO decision (2002Du8626), where the Court fully incorporated the effect-based (or more economics-oriented) approach, it has been required to prove exclusionary effects (or potentials thereof) and intent/object to establish abuse, saving an exception that, once actual effects were proved, intent or object could be presumed. In practice, however, the KFTC has increasingly faced difficulties in proving effects and has shown a tendency to rely on internal communications or similar evidence to establish subjective intent or object, particularly in digital platform cases. A similar pattern appears to have occurred in this case as well, yet the Court drew a clear line by stating that 'a concern about competitive harm cannot be established solely on the basis of the intent or object to restrict competition.'[3]
In my view, the Court’s curbing of the tendency to rely on intent or object makes this ruling particularly noteworthy.
Specifically, in this case, the KFTC selected five instances of search algorithm adjustments or modifications by NAVER—out of dozens—that led to outcomes favorable to itself, and based its finding on anti-competitive intent or object. The Supreme Court, in contrast, took a broader view, acknowledging the business reality that some degree of bias is inevitable in the whole process of improving quality, and rejected the enforcer's approach of inferring anti-competitive intent or object from a few selective instances. In my view, this is a rejection of the unrealistic perception that 'only a perfectly pure intent can be legitimate,' and, given the realities of business practice, this was a reasonable judgment.
The third noteworthy point is that, regarding anti-competitive effects, the Court clarified that the causal link between the accused conduct and the effect must be analyzed. The KFTC and the Seoul High Court recognized actual or potential effects merely on the ground that NAVER’s market share, transaction volume, and the number of third-party sellers using its platform increased after the conduct in question. However, the Supreme Court found this approach flawed and ruled that the enforcer and the lower court should have further examined whether the resulting expansion of NAVER’s business (i.e., the increase in third-party sellers on its e-commerce platform), which had been presented as evidence of actual or potential effects, was caused by the alleged anti-competitive conduct, or (as the company claimed) by legitimate competition on the merits, or simply by the overall growth of the industry.
Such a jurisprudentially sound ruling leads me to perceive that it is the Supreme Court, rather than the KFTC, that reflects the spirit and beauties of the EU Google Shopping case in a more balanced and faithful manner.
Unfair trading practices
That said, it should also be noted that the Supreme Court’s judgment is not without aspects that, in my view, may have gone somewhat too far or too strictly.
The points discussed above concerned the application of the abuse of dominance provisions, whereas the KFTC had also invoked the unfair trade practice (UTP) provisions, as noted above. On these latter counts, specifically, deceptive inducement and discriminatory treatment as lessening competition, the Court’s reasoning appears, perhaps, excessively strict.
First, the threshold for a protectable standard of consumer perception seems to have been set too high in this case.
Regarding whether the algorithmic adjustments at issue amounted to deceptive inducement, the Supreme Court applied the well-established standard of 'ordinary consumers with normal trading experience and attention' (e.g., 2014Du15047). Upon this, it held that such consumers would have understood that the rankings were not determined solely by the quality or advantage of the goods themselves, and found that the algorithmic changes were not enough to reach the level of illegitimate deception, capable of impairing consumers’ rational choice.
What I personally find somewhat regrettable is that the UTP provisions, much like Section 5 of the U.S. FTC Act, embody a consumer protection function within the competition law enforcement framework, and thus could have allowed for a more relaxed standard, particularly in this digital case. My personal hypothesis is that, in digital environments, consumers may be more easily misled than in offline settings; therefore, a somewhat lower, consumer-friendly threshold might have been appropriate, broadening the scope of what counts as deception.
Second, the same concern applies to the finding on discriminatory treatment as "lessening competition."
The Court repeated its reasoning under the abuse of dominance analysis and concluded that neither restricting nor lessening competition had been sufficiently proven. However, considering the legislative intent and utility of the UTP provisions, particularly in cases of incipient violations, one might question whether the Court demanded an overly high evidentiary standard.
To be fair, the Court’s decision to dismiss the UTP claims is not entirely without justification.
The main issue in this case lay in the abuse of dominance violation. So, even if the Court had applied a more relaxed standard under the UTP provisions, the outcome would likely have differed only a little, apart from a somewhat mitigated degree of sanction. Moreover, it should be considered that the KFTC has shown a tendency to invoke UTP provisions almost habitually as a kind of fail-safe to increase the likelihood of success in abuse of dominance cases. Given this context, it may be plausible that the Supreme Court intended to place a check on this scattergun or shotgun-like enforcement practice.
Reflections
Personally, I view this judgment, together with the social backlash against the government’s platform regulatory initiatives from 2020 to 2024, as representing one of the most significant pushbacks against the government’s pursuit of the EU’s regulatory approach to the digital economy, despite contextual differences.
Putting aside the validity or credibility of the doctrine of self-preferencing as a basis for finding abuse, this case, much like the platform regulation attempts, as I recently presented at the 2025 ASCOLA Asia Conference (titled, 'Korea's Platform Competition Regulation Push: Through the Lens of Institutional Isomorphism'), was flawed from the outset: an isomorphic effort to emulate foreign developments in a different local context.
As noted earlier, a closer look reveals that it was actually the Supreme Court, rather than the KFTC, that effectively and successfully internalized the virtues of the EU Google Shopping judgment in Korea. Unlike the enforcer, which sought to transplant the EU’s specific conclusions into a different domestic context, I think the Supreme Court distilled the essence and rationale of the ECJ’s decision very well and incorporated them in a highly successful and contextually appropriate manner.
While there remain some regretful aspects in the Court’s interpretation of the UTP provisions, these seem rather technical, as discussed above. I am inclined to think that the outcome might have been different, in favor of the KFTC, had the agency instead relied solely on the UTP provisions. In that regard, I look forward to the Supreme Court’s forthcoming judgment in the Coupang case, where deceptive self-preferencing is being challenged purely under the UTP framework. (For details, see my previous piece, https://ssrn.com/abstract=5172277, at 23-25)
I am grateful to Professor Jinha Yoon (Korea University) for generously sharing her time and insights in response to my questions about this case.
[1] Roughly speaking, Korea’s unfair trading practice (UTP) provisions correspond to Section 5 of the US FTC Act. They allow the KFTC to address, within the framework of competition law enforcement, not only incipient anti-competitive conduct but also certain acts related to consumer protection or unfair competition.
[2] As of the time of writing (October 19, 2025), the full text of the Supreme Court's NAVER Shopping decision has not yet been disclosed. The following is mostly based on my reading of various media reports and on information I gathered from my colleagues.
[3] As for the term 'concern' (originally, '경쟁제한의 우려'), the 'potential' or 'likelihood' may be a better translation in the context of competition law.
