특수관계인에 대한 부당이익제공행위 규제의 법적 쟁점과 개선과제

Article 23-2(Prohibition on Undue Support Practices to Specially RelatedPersons) was adopted in the Monopoly Regulation and Fair TradeAct(hereafter, ‘the MRFT Act’) on Aug, 13, 2013. Therefore, there are theregulation on Undue Support Practices in Item 7, Clause (1), Article 23 andthe regulation on Undue Support Practices to Specially Related Persons at thesame time. First, it is necessary to establish the relationship of both the regulations. Theregulatory purpose of Item 7, Clause (1), Article 23 of the MRFT Act is toprohibit ‘Undue Support Practices characterized by the feature of the UnfairBusinesses’, but that of Article 23-2 of the Act is to prohibit ‘the pursuit ofthe personal interests of the large enterprise groups.’ The Articles aredifferent from each other in the purposes of regulation. Therefore, Article23-2 is not the special law of Article 23, but the former has ‘a parallelrelationship’ to the latter with the different dimension’s regulations. Secondly, it is necessary to consider a yardstick to determine illegality of thepractices in Article 23-2. The different specific yardsticks were applied foreach practice in Article 23-2, but I think the core illegality of the practices isin ‘the pursuit of the personal interests in the large enterprise groups