공정거래법상 사업기회제공의 성립요건과 위법성 판단기준 - ‘현대 글로비스 사건’을 중심으로

Abstract

As the Monopoly Regulation and the MRFT Act(hereafter, ‘the MRFT Act’) was revised in August 13, 2013, Article 23-2(Prohibition on Undue Profit Provision to Specially Related Persons) was newly adopted and has been implemented since February 14, 2014. The MRFT Act, Article 23-2 was enacted to prohibit large corporate group owners and their families from defrauding private interest. The existing prohibition on undue support practices of Article 23, Paragraph 1, Item 7 newly regulates prohibited practices, and one of them is ‘Provision of Business Opportunity’ of Article 23-2, Paragraph 1, Item 2. This provision seems to be similar to ‘Usurpation of Corporate Opportunity’ stipulated in Commercial Law, Article 397-2 but is newly adopted with a separate purpose of prohibition, and therefore for the operation, it needs to develop independent requirements for establishment suitable for the MRFT Act and illegality standards. First of all, Business Opportunity by the MRFT Act means “business opportunity that can be a considerable profit to the company if the company or its subsidiary company seizes it.” This action should be interpreted as the concept including businesses of not only profits the company makes but also preparations for starting a business when the company decides to do it. Also, it needs to include businesses of the internal review stage although neither an internal decision on business execution nor external action has not been made. Next, business opportunity by the MRFT Act means “business opportunity that is being carried out by the company or is closely related to the business to be conducted.” More specifically, it can accept the close relationship in case of ‘businesses that the company can seize easily as it is similar to its current business’ or ‘businesses inevitably involved in the process of executing the company’ business.’ Lastly, it needs to examine the cause for exemption of business opportunity by the MRFT Act. First, “if the company is not capable of performing the business opportunity”, the case can be considered ‘legally incapable’ or ‘economically incapable.’ Second, “if the company receives the rightful reward for business opportunity”, the relevant judgement standard for “rightful reward” can consider ‘market value’ of the business opportunity, which can be assessed with its expected total net profit’ when the company itself carries out the business opportunity. Third, “if the company refuses business opportunity with a reasonable reason, the exemption causes include “the case that the company regards it as unprofitable, or ‘the case that it costs a lot to carry out business opportunity. Besides, 'the approval of the board’ about business opportunity or ‘Business Judgment Rule’ cannot be exempt from the application of the law.