한진그룹의 ‘특수관계인에 대한 부당한 이익제공 행위’ 사건 대법원 판례 검토

Abstract

On May 12, 2022, the Supreme Court made a final decision on the Hanjin Group case in which the Korea Fair Trade Commission (KFTC) imposed an administrative penalty by applying the ‘prohibition of unfair benefits to related parties’ (Monopoly Regulation and Fair Trade Act (MRFTA), Article 47, Paragraph 1). In 2017, the Seoul High Court ruled that the KFTC should prove whether the act in question attributes ‘unfair benefits’ to a related person. It has been five years since the KFTC appealed against this decision. Since its enforcement on February 14, 2014, the regulation prohibiting unfair benefits to related parties—i.e., the so-called ‘regulation for exploitation of private benefits’—has significantly impacted related party transactions of large corporate groups. Contrary to the KFTC’s active will to enforce the law, however, when the KFTC lost in a lawsuit against the KFTC's disposition, it was argued that the requirements for proof of unfairness should be relaxed. According to the KFTC, in light of the legislative purpose, it is argued that the regulation was enacted to allow the regulatory authorities to easily regulate the activities of exploitation of private benefits without active and concrete proof of unfairness. In other words, the KFTC’s position is that it does not have to directly prove that the concentration of economic power has occurred or has been strengthened due to the unfairness caused by the exploitation of private benefits. The problem has emerged because the expression ‘unfair benefits’ appears in Article 47 (1) of the MRFTA. Regarding the elements of illegality, the main issues of discussion were whether it is necessary to determine the unfairness of attributable benefits and, if necessary, what the meaning of unfairness is. Furthermore, there was also the question of whether the KFTC had to prove ‘unfairness’. In the Hanjin Group case, the Supreme Court ruled that the KFTC had to prove unfairness. According to the Supreme Court, however, ‘unfairness’ in prohibiting unfair benefits differs from unfair trade practices. In other words, based on the ruling of the Supreme Court in Korea, unfairness does not require a risk of impeding fair trade by restricting competition or concentrating economic power in the market to which the object of action belongs through the act of providing benefits. After comprehensively considering various factors (such as the relationship among the subject of the action, the object of the action, and specially related persons, the purpose and intention of the action, the circumstances of the action, and the economic situation the object of the action faces, the size of the transaction, the size of the private benefits attributable to a related person, and the duration of the act of providing profits, etc.), unfairness should be judged according to whether there is a risk that the concentration of economic power will be maintained or deepened centering on the ‘specially related persons’ of large conglomerates through the anomalous transfer of wealth, etc. The Hanjin Group case is expected to serve as an important precedent for the interpretation of the provisions of the controlling family shareholder’s exploitation of private benefits. However, in consideration of the legislative purpose, continuous review and efforts are needed for a more sophisticated and rational interpretation and application of the law.