부당지원행위 형사처벌에 대한 죄형법정주의 관점에서 소고

The “principle of no punishment without law” governs the penal provisions applicable to unfair support set forth in Article 23(1)7 of the Monopoly Regulation and Fair Trade Law (“FTL”) and the offering of undue benefits to related parties set forth in Article 23-2(1)1 of the FTL (hereinafter, collectively referred to as “unfair support”). Pursuant to the principle of clarity, which is derived from the principle of no punishment without law, the penal provisions should allow individuals to anticipate what acts are prohibited. At the same time, those provisions should eliminate a possibility that the law enforcement or law-interpreting authorities arbitrarily enforce or interpret applicable laws. Further, any unclear penal provision is in violation of the principle of liability. When we judge whether a violation of the FTL is established due to an act of providing unfair support, the “arm’s length price”for the transaction at issue serves as an objective factor for judgment because it is the yardstick for determining unfair support. Nonetheless, the current FTL does not clearly sets out how to calculate an “arm’s length price” and the amount of difference needed to recognize that unfair support is “substantially” more favorable than the arm’s length price. In a number of administrative cases, the court has ruled on the calculation method of an arm’s length price. Despite the court’s endeavor, however, it is still impossible for individuals to judge whether they are in violation of applicable laws even if they calculate an arm’s length price at the time of providing support. Thus far, while the penal provisions remain unclear, the law enforcement authorities, which are the Korea Fair Trade Commission (“KFTC”) and the Prosecutors’ Office, have been arbitrarily enforcing and interpreting applicable laws. Therefore, as long as criminal penalties are imposed against unfair support, the penal provisions are unarguably unconstitutional because they contradict the principles of clarity and liability. For this reason, applicable laws should be amended. Until then, the KFTC should at least refrain from exercising its right to file criminal complaints based on such unconstitutional penal provisions.