공정거래법상 일감몰아주기에 관한 연구

Abstract

The Fair Trade Act has recently been revised to have a new stipulation, Article 23-2, in order to prevent any unfair profit provided to a special interest-related person mainly in ‘intra-group transaction’. Thus, unlike the conventional regulation on unfair trade acts, the revision can be deemed to have been improved in its quality as the revision included the regulation on the special interest-related persons such Jaebeol. Fairness was not proved in the course of direct process by the Fair Trade Commission in individual cases and there was a limitation on regulation, but under the revised law the substantiality of unfairness is regulated, it is expected that the Fair Trade Commission will perform a realistic regulation. Hence, this improvement in the revised law is noteworthy. Notwithstanding, there is a problem that Article 23-2 of the Fair Trade Act is abstract in content and broad. Although the type and standard of the act are specifically provided through the enforcement decree, the concept of the substantiality or business opportunity is not satisfied enough. In addition, because there are issues about its suitability in connection with other laws such the Commercial Law, complements should be made to solve such issues. Therefore, if there occur specific issues about ‘intra-group transaction’ due to the abstractness or un-clearness of the law, the concept will be specified thanks to judicial precedents. Hence, the supreme court should make interpretations and decisions in harmony with the legislation intent of Article 23-2 of the revised law about positive regulation on ‘economic concentration’ beyond the conventional passive interpretation.