공정거래법상 사업기회 제공을 통한 특수관계인에 대한 부당한 이익제공의 법리에 관한 연구

Abstract

Providing a business opportunity is a very unique type of unfair benefit-providing behavior for related persons under the Monopoly Regulation and Fair Trade Act. Unlike other types of unfair benefit-providing behavior, it is difficult to apply law enforcement precedents and case law on unfair assisting activities. In addition, a number of indefinite concepts such as “business opportunities”, “act of provision”, and “refusal of business opportunities for reasonable reasons” which are unfamiliar in legal theory on the Act, are used, and, therefore, subject to wide range of interpretations. In applying the prohibition on the provision of business opportunities under the Act, it is necessary to consider not only the text of the relevant law provisions but also the purpose of the legislation and comparison with legislation on the similar conducts. The prohibition of providing unfair benefits to related parties through the provision of business opportunities under the Act seems similar to the prohibition on appropriation of company’s opportunities and assets under the Commercial Act, but has separate regulatory purposes. The former is quite different from the latter in terms of the person subject to the law, the conduct regulated by the law, and disciplinary means imposed upon violators. Therefore, its own requirements and standards for determining illegality suitable for the regulatory purpose of the Monopoly Regulation and Fair Trade Act should be developed and used. In particular, the ‘business opportunity’ under the Act should be interpreted as one that is certain to generate considerable profits to the company in advance and the ‘act of provision’ should be strictly interpreted as an act necessary and sufficient to enable related parties to use the business opportunity.