공정거래법상 부당지원행위 관련 정상가격 산정 기준 - 대법원 2015. 1. 29. 선고 2014두36112 판결 -

The Korean Monopoly Regulation and Fair Trade Act (MRA) has a unique provision, article 23(1)(vii), which prohibits undue support practices between firms. In March 2014, the Seoul High Court delivered the 2013Nu45067 decision which recognized that the Sinsaegae department stores and the Emart, plaintiffs, unduly supported the DayandDay bakery runned SinsaegaeSVN (belonged to the Sinsaegae group to which plaintiffs also belonged), by determining the rate of sale commission 20.5% for renting their store place. In the Sinsaegae, the Seoul High Court said that the difference between 20.5% and the normal rate of sale commission 23%, estimated by the Korean Fair Trade Commission (KFTC), restrained fair competition in the bakery bread market by giving the DayandDay undue competitiveness over its rivals, therefore plaintiffs breached the ex article 23(1)(vii) of MRA. In January 2015, however, the Supreme Court declared that the normal price in the context of the ex article 23(1)(vii) should be estimated by the resonable method which reflects all other relevant and similar contracts between firms which are not belonged to the same business group. In the Sinsaegae, the Supreme Court said that the method of estimating the normal rate was not reasonable, and there was no evidence which showed the normal rate of commission was 23%, and therefore reversed the Seoul High Court’s decision on the contract between plaintiffs and SinsaegaeSVN.