공정거래법상 ‘특수관계인에 대한 부당한 이익 제공행위’에서 ‘부당한 이익’의 해석론

Abstract

In the early 2000's, the Supreme Court ruled that provisions of the Monopoly Regulation and Fair Trade Act governing unfair assistance for persons with special interests to businesses (Article 23, Paragraph 1, Item 7) require proof of hindering competition in the market. Consequently, it was widely understood that prosecution of delivering significant benefit to natural persons (typically family members of the presidents of large conglomerates) would not be feasible under such a regime since the Korea Fair Trade Commission (the "KFTC") would not be able to collect evidence that shows such hinderance in the market in practice. In 2013, in the name of so-called economic justice, Congress passed a bill introducing a new regulation aiming to prohibit such overtaking of corporate interests by family members of the president of large conglomerates: Article 23-2 prohibits providing inappropriate benefits to persons with special interests to large conglomerates by stipulating four types of conducts which include so-called tunneling in corporate law. The KFTC recently prosecuted two large conglomerates that dealt with tunneling by family members of the president of a conglomerate. One of the conglomerates appealed to the Seoul High Court to revoke the corrective actions and the case is currently pending. One of the most critical issues in this case is the interpretation of the requirement of “inappropriate benefit” of Article 23-2, Paragraph 1. While plaintiffs are known to argue that this element requires positive proof of “inappropriateness” of the benefit transferred to persons with special interests by the KFTC, the author argues that such benefit should be considered inappropriate as a principle so long as no “special factors” exist. This is because the conduct stipulated in the four items of Article 23-2, Paragraph 1 cover typical violations of corporate law that tamper corporate interests and governance and the resulting benefit taken by persons with special interests would aggravate concentration of economic power. As a result, the KFTC's burden of proof should be limited to showing a minimum tendency of inappropriateness of such benefits instead of proving inappropriateness in a positive manner. The plaintiff may be allowed to negate the inappropriateness of the delivered benefits by showing evidence of special factors that could overrule such inappropriateness; examples may include a de minimus rule or special intent and/or objective facts like self-defense.