자본거래 관련 부당지원행위의 성립

Abstract

The Unfair Subsidies, stipulated in the Monopoly Regulation and Fair Trade Act("Fair Trade Act") of Korea, means an Enterprise's activity which unreasonably subsidizes specially related person or the other company by providing financing, assets, or human resource or transacting with those under the substantially favorable condition, and thereby harms or is likely to harm fair trade. The requirements to establish such activity consist of three parts, which are characteristics of subsidy, substantiality of subsidy, and unreasonableness. Firstly, what characterizes seemingly normal transaction as subsidy is transfer of economic benefit between trading partners. Secondly, the size of economic benefit transferred together with period, frequency, timing and situation of subsidy is taken into consideration in determining substantiality of subsidy. Last but not least, unreasonableness can be reviewed from both aspects of whether to impede competition and whether to cause concentration of economic power. Based on abovementioned general theory underlying the unfair subsidies, this article focuses on issues relating to capital transaction. Accordingly, whether capital transaction constitutes subsidy activity is contemplated and then some court cases dealing with capital transactions among affiliated companies or specially related persons are explored. Due to their uniqueness different from those typical examples of unfair subsidy cases, a study into these type of unfair subsidies would be meaningful in systemizing more detailed case law and providing with implications towards the capital market.