부당지원행위와 정상가격

Abstract

In order to judge whether an act constitutes unfair support under Article 23, Paragraph (1), Subparagraph 7 of the Monopoly Regulation and Fair Trade Law (the “FTL”) and unfair provision of benefits to a specially related person under Article 23-2, Paragraph (1), Subparagraph 1 of the FTL, it is necessary to determine whether such support was performed under a “significantly (or considerably) advantageous condition,” which eventually leads to an issue of how the “normal value” was set. Although this normal value is the most important standard in determining unfair support under the FTL, the concept/idea of normal value is not set forth under the current FTL: Provided, however, that the Review Guidelines for Unfair Support, one of the rules of the Korea Fair Trade Commission (the “KFTC”), provides a provision defining such term while only offering some examples of normal value for each type of transactions. According to the court precedents, strict burden of proof is placed on the KFTC based on virtualness and abstractness of the normal value. With respect to a specific issue, it appears that the court precedents take a view that the normal value should be a comparable value and should be adjusted when it is compared to the price involved in unfair support. While terms similar to normal value are also found in regulations under tax laws such as the International Tax Coordination Law and the Corporate Income Tax Law, as well as those under the WTO Anti-Dumping Agreement (the “ADA”) and the US-EU ADA, we may refer to such terms regarding the normal value for unfair support under the FTL. In particular, interpretation (lex lata) of normal value under other laws also put strict burden of proof of the normal value on tax authorities. Moreover, when calculating normal value, the relevant authorities are required to rigorously consider the comparability of such value from the stage of searching for an adequate and comparable transaction. Therefore, and even considering lex ferenda of the FTL, the concept/idea and standard of normal value should be specifically set forth in laws and regulations in more detail to enhance an individual’s predictability in the law. Especially, regulators should clarify a principle that in order to calculate normal value, the relevant authority should find a comparable transaction that is similar to the transaction in question as much as possible, and if there is any difference between the former and the latter, such difference should be reasonably adjusted.