계열사 부당지원행위 규제의 법적 쟁점과 개선방안 - 일감몰아주기, 부당내북래 등을 중심으로 -

Abstract

The Article 23 §1(ⅶ) of the Monopoly Regulation and Fair Trade Act(herein after MRFTA) stipulates supporting conduct between affiliated firms. It is a unique regulation in Korea. An act of supporting with volumes of trade(So-called Il-Gam-Mol-Ah-Joo-Gi) to a certain company by large-sized companies is an one type supporting conduct between firms. Act of supporting with volumes of trade to a company by affiliates of the Group has problem excluded from the relevant market the other competition companies belonging to the industry in question. So, act of supporting with volumes of trade must be regulated in order to protect the order of fair and free competition in the market. However, it must also be noted that there is normal internal transactions that does not adversely affect the market order of fair and free competition market. The normal internal transactions conduct for corporate confidentiality and logistics cost savings, logistics and subcontracting stable and ensuring quality etc. To maintain the competitive order in the market and must be done only in order to prevent the excessive concentration of economic power in principle. Several legislative action were made to regulate unfair transactions recently. Expansion of the self-dealing on directors and the introduction the company’s opportunity theory were legislated to the Commercial Act. And the taxation on gains from transaction between affiliate firms was introduced to the Inheritance Tax and Gift Tax Law in 2012. In addition, published criteria of internal transactions of the Group in has been enhanced by the MRFTA enforcement decree amendment, it has become possible to monitor the transaction between affiliate firms more easily. The MRFTA must be executed faithfully to the original purpose of maintaining order of fair and free competition in the market. In other words, it regulates only unfair supporting conduct to be connected to the concentration of excessive economic power or can have an adverse effect on the competitive order in the relevant market. Traditionally, this can be achieved by amending the provisions relating to unfair support conduct. The regulatory purposes of the MRFTA is the protection of competition rather than the protection of competitor. In other words, it should be kept in mind that the competitor is protected and consumers are protected through a competitive order fair and free in the market. In this study, in relation to unfair support act it contains at act of supporting with volumes of trade has been presented in detail the MRFTA amendment. It is summarized as follows. First, as in the conventional the unfair support conduct, it is defined as unfair trade act Chapter 5. However, requirements were modified from the prominent to the reasonableness. Second, placing the presumptive rule of unfair support conduct. It is presumed to be unfair support conduct the internal transaction more than 50% in terms of sales. Third, it was defined as the contents of the unfair support conduct anew the contents associated with useful on the occasion of the company. Fourth, placing the surcharge provision obligations and provisions of the object of unfair support conduct.