부당지원행위의 부당성 판단에서의 사업경영상 필요성의 지위와 역할

Abstract

This study aims to argue these two points. Firstly, it reviews which status and role necessity of business administration has in determining the unfairness of unfair subsidies based on Supreme Court decisions to date. Secondly, it presents how status and role of necessity of business administration should be materialized in determining the unfairness of unfair subsidies in light of the principle of allocating the burden of proof and the nature of unfair subsidies as infringements of the Monopoly Regulation and Fair Trade Act (“MRFTA”). The conclusion of this study can be summarized as follows. Firstly, the contents and scope of the necessity of business administration should be recognized more broadly in light of the principle of equality as far as those of competition-impediment which constitutes the unfairness of unfair subsidies reach. Secondly, though the necessity of business administration is a factor to be considered in determining the unfairness in totality, an actor has a de facto burden of showing it. However, the Korea Fair Trade Commission (“KFTC”)should prove that such a showing is about a ‘mere’ necessity of business administration. Thirdly, if the former point is not proved by the KFTC or insufficient in proving, the necessity of business administration shown by the actor would be a consideration factor in principle, and the court would assess the extent that such reason is considered in determining the unfairness in terms of the fair trade order. Fourthly, as there is no need for an exactly proportional relationship between the necessity of business administration and disadvantageous circumstances to the actor in determining the unfairness, the unfairness may be denied directly on the ground of the necessity of business administration to the extent that there is not any other special circumstances. Fifthly, in such cases as subsidies through dealings of products or services in which the intent of a subsidizing party can be understood multiply, whether the ‘primary’ intent of the party is associated with the fair trade impeding effect should be assessed in determining the unfairness and the necessity of business administration would be an important consideration factor in such assessment.