특수관계인에 대한 부당한 이익제공의 금지 - 입법취지와 도그마틱의 조화라는 관점에서 -

Abstract

Regulatory purpose or legislative history is a starting point for proper interpretation of the Korea Anti-Monopoly Act(hereafter “the Act”) containing many vague terminologies. So-called teleologic interpretation cannot, however, totally rule out the written law; otherwise the interpretative power of the KFTC or the courts threatens legislative power of the Congress and the division of powers would be impaired. Notwithstanding the legislative intent that the in 2013 newly adopted prohibition of unfair profits provision to the affiliated person of Chaebols(§23-2 of the Act) shall be applied de facto per se, the de-coupling between §23 I No.7 and §23-2 seems to be far. According to the systematic understanding of the Act as a whole, the term “unfair” should be given any unique role in order to differentiate various form of profit transfers from affiliated companies to the owners and their families. The prohibition of unfair profits provision under the Act should be assessed in terms of control of economic overall concentration, the very value of national economy. From this perspective, the “unfairness” in §23-2 should unfold two distinct functions: first, interpretation of reasonable reduction, which enables the KFTC to take into account the motive and size of the transferred profits and other objective justifications; second, differentiation from §23 I No.7, which affords within §23-2 room for considering unsound ownership concentration or expedient wealth transfer between chaebol generations.