부당지원행위 관련 주요 쟁점 및 최근 입법동향에 관한 연구

Abstract

Monopoly Regulation and Fair Trade Act(MRFTA) of Korea prohibits the acts of unreasonably "providing specially related persons or other corporations with temporary payment, loan, manpower, real estate, securities, products, services, intangible property rights, etc., or aiding a special related person or other corporations by trading under extremely favorable terms"(Article 23, Paragraph 1, Subparagraph 7). The intention to regulate the undue supports is to prevent many problems resulting from unfair trade and economic concentration. However, there were many criticisms that the undue supported behaviors have not been regulated effectively and economic concentration is deepening in Korea. They have been discussed as a kind of economic democracy. In 2013, the National Assembly enacted or revised several clauses in order to regulate undue supported behaviors more effectively and strongly. First, the criteria of the undue supported behaviors were less strict by changing 'extremely favorable terms' to 'quite favorable terms'. This change relieves the Korea Fair Trade Commission(KFTC) of the burden of proof. Second, KFTC does not need to prove the unfairness of trade to regulate the undue supported behaviors for special related persons. It is very difficult to prove the unfairness of trade in the undue supported behaviors for special related persons. Third, the intentional work concentration by Chaebol was prohibited. Chaebols could accumulate huge wealth through the intentional work concentration by subsidiaries. Fourth, the undue supports for subsidiaries without substantial role were prohibited. Some companies could be supported by receiving commission without substantial role by intermediating in trade between their other subsidiary and the third company. The undue supported behaviors are related with the protection of shareholders and debtors, the prevention of the illegal transfer of wealth, fair taxation and the control of antisocial acts as well as fair trade. It is not only impossible but also undesirable to solve the issue only by one law or one policy. It is not desirable to depend too heavily on MRFTA. I think that companies should eradicate wrong practices by abiding by the commercial law for themselves.