공정거래법상 특수관계인 등에 대한 부당한 사업기회제공의 도그마틱

Abstract

1. Article 23-2 (1) of the Monopoly Regulation and Fair Trade Actof Korea (hereafter ʻʻthe Actʼʼ) prohibits providing unfair benefits to persons with special interests to large corporate groups by four types of conducts or transactions which include so-called tunneling in corporate law. As for the provision of unfair business opportunities prohibited by Article 23-2 (1) 2 of the Act, there has been no precedent so far, and most of the prohibition requirements remain very vague. As there is not a small difference in the purpose or requirements from the prohibition of the use of corporate opportunities stipulated in Article 397-2 of the Commercial Act, it is needed a rational harmonization of dogmatic and market reality so that the regulations under the Act have legal certainty and predictability. An interpretation theory will have to be prepared. 2. Although Article 23-2 (1) of the Act was enacted for the purpose of preventing private ʻʻtunnelingʼʼ, the interpretation of this Article cannot be approached only from the viewpoint of protection of minority shareholders or creditors, and has a unique purpose different from the Commercial Act or the Inheritance and Gift Tax Act. Its purpose is beyond private interests to regulate ownership concentration, which is different from market concentration and general concentration, which could be found in the objective clause of Article 1 of the Act. In other words, 'unfairness' of profits attributable to specially related persons means that the transaction or the provision of business opportunities directly or indirectly vests considerable profits to related persons, unlike the prohibition of unfair support of affiliated companies, thereby causing the expedient succession of the Chaebol or the expedient transfer of wealth between owner generations. 3. It is very difficult to prove the facts regarding the unfair provision of business opportunities and the aggravation of the concentration of economic power. It is questionable whether the provision of business opportunities could have meaning as an independent type of prohibited conducts. Unless, in reality, an affiliated company provides a business opportunity, and then it is associated with a separate prohibited act, such as transactions on considerably favorable conditions or on a large scale with the affiliated company that performs the provided business opportunity, it doesn't seem easy to grasp such provision of business opportunities by itself as a means for the attribution of unfair profits to persons with special relations.