공정거래법상 부당이익제공행위 금지의 핵심 법리에 관한 비판적 고찰 - 경제력 집중 유형론 비판과 소유집중 의미의 재해석

Abstract

In 2022 and 2023, the Supreme Court delivered four judgments, respectively, concerning providing unjust benefits under the Monopoly Regulation and Fair Trade Act. These Supreme Court rulings are expected to further develop the legal doctrine prohibiting the act of providing unjust benefits and to invigorate practical enforcement. In academia, extensive discussions have already taken place, particularly within the fields of economic law and commercial law, regarding the Supreme Court's rulings. Concurrently, the Korea Fair Trade Commission (KFTC) has amended its relevant enforcement guidelines in accordance with the rulings and has strengthened related regulations. In this context, it is timely to review the main contents of the Supreme Court's decisions and to conduct a comprehensive examination of the core legal principles. However, there has already been considerable commentary on the rulings, and intense debates have taken place on essential issues such as the interpretation of the legal requirements for the prohibition of providing unjust benefits, the validity of such regulations, and the jurisdictional issues between competition law and commercial law. Therefore, this study focuses on the principle of unfairness established by the case law, while critically examining the concept of so-called 'ownership concentration,' which has been relatively underexplored in existing discussions. Specifically, it raises fundamental questions about the typology that distinguishes economic concentration into general concentration, market concentration, and ownership concentration, moving beyond the existing debate on whether the issue of ownership concentration should be addressed by competition law rather than corporate law. Ultimately, the article argues that to elucidate the economic legal significance of the act of providing unjust benefits, it is necessary to directly examine phenomena problematic from the perspective of our market economy, rather than through the framework of economic concentration typology and ownership concentration.