공정거래법상 대기업집단 규제의 심판결 검토 – 기업집단 태광 및 대림의 사익편취 사건을 중심으로

Since the Monopoly Regulation and Fair Trade Act(hereinafter “KFTA”) was enacted in 1980, large business group regulations such as establishment of Holding Company, limitations on Cross Shareholding and Circular Shareholding, debt guarantees for affiliates and disenfranchisement of voting rights of finance company or insurance company were adopted to control minority structure, so called chaebol. In 2013 the KFTA promulgated a new provision, Article 23-2(Prohibition on Undue Support Practices to Specially Related Persons) to prevent unfair support for specially related persons and usurpation of corporate opportunity in the name of economic justice. Recently in case of Korean Airlines the Seoul High Court ruled that at the level of illegality determination the interpretation of Article 23-2 required the solely determined “inappropriateness” like as unfair assistance for parties with special interests to businesses(Article 23, Paragraph 1, Item 7). The most highly contentious issue in this case is the interpretation of “inappropriate benefit” of Article 23-2. Though there are many opinions sharply divided on the ruling, KFTC have prosecuted several cases on the interpretation of the determination of “inappropriateness” as the negative ever since. For the purposes of the legislation of Article 23-2, the interpretation of “inappropriate benefit” is dissimilar to the “inappropriateness” of Article 23, Paragraph 1, Item 7, if stipulated in the four conducts of Article 23-2, such benefit should be considered “inappropriateness” broadly. In the interpretation and enforcement of Article 23-2, the paramount consideration must be the purposes of the legislation of Article 23-2, preventing any excessive concentration of economic power and striving for balanced development of the national economy.