Constitutional Review of the Tentatively Named ‘Online Platform Competition Promotion Act’ : Focusing on the Pre-designation of Market-dominant Platform Operators & Shifting Burden of Proof and the Estimation of Competition Restrictions & Shifting Burden of Proof
Authors:   Korean Constitutional Law Asscciation, Hwang Sung Gi 
Published: October 2024

This paper aims to analyze constitutional problems of the pre-designation of market-dominant platform operators & shifting burden of proof and the estimation of competition restrictions & shifting burden of proof. The pre-designation of market-dominant platform operators & shifting burden of proof to designate market-dominant platform operators in advance and place the burden of proof that they are not market-dominant platform operators on the platform operators. Further the estimation of competition restrictions & shifting burden of proof is to presume the anti-competitive nature of a pre-designated market-dominant platform operator and place the burden of proof on the platform operator to prove that there is no anti-competitive nature. The results of the study are summarized as follows.
First, in fact, the pre-designation of market-dominant platform operators & shifting burden of proof and the estimation of competition restrictions & shifting burden of proof should be viewed as imposing disadvantages as an effect of a guilty plea, which is to impose tangible and intangible discrimination in legal and factual aspects based on ‘acknowledgment of criminal facts or guilt’, with the meaning of social condemnation or retribution. In other words, since it presumes guilt before guilt or innocence has been determined and imposes the ‘unfavorable disposition’ of ‘shifting the burden of proof’ based on this premise, it is highly likely to violate the principle of presumption of innocence or at least ‘undermine’ the principle of presumption of innocence.
Second, the pre-designation of market-dominant platform operators & shifting burden of proof and the estimation of competition restrictions & shifting burden of proof are to ‘shift’ the burden of proof that should be borne by the state, the entity exercising public power, to the online platform operators, who are the subject of regulation. Therefore, it should be viewed as violating the principle of self-responsibility because it places responsibility on online platform operators for things they did not decide or could not decide.
Third, the pre-designation of market-dominant platform operators & shifting burden of proof and the estimation of competition restrictions & shifting burden of proof violate the proportionality principle and infringes on the freedom of business and freedom of business activities of online platform operators.
When regulating online platforms, the following values must be comprehensively considered: first, the convenience of consumers; second, the rights and interests of small business owners who are platform tenants; and third, the freedom and will to innovate of platform operators who provide platform services. These three values are constitutional values that cannot be abandoned. This is why a more balanced and harmonious approach to regulating online platforms is needed.