조선업에서의 부당한 하도급대금결정행위 - 하도급법 제4조 제2항 제5호를 중심으로 -

In the shipbuilding industry, one of Korea’s main industries, subcontracting is extensively prevalent, especially compared to other industries, and the process and structure of the payment decision are unique. In other words, the subcontract price in the shipbuilding industry is calculated based on the “time value” rather than “quantity” and various valuation factors are posted here, making it a likely point for disputes between the parties to the subcontracting transaction. What we particularly want to note in this article is the evaluative nature of price in subcontract. Determining the price between parties is essentially a matter of profit allocation arising from the transaction, and, moreover, if there are many circumstances in which the equality of the status between the parties is not guaranteed, it is necessary to determine from an objective perspective whether the price decision was made on the basis of a fair share of profits, which is exactly what the Subcontracting Act would require. In the case of Article 4(2)5, in particular, the requirement of ‘unilateral’ will have important implications for indirectly proving the unfairness of the price level, which is based on the assumption that if one of the parties is in a fairly superior position in the transaction, the other party may not be able to enjoy the independence and autonomy of decision-making in the course of negotiations for the payment, and that it is difficult to conclude that there is a genuine agreement. Therefore, it would be possible to assess the unfairness of pricing by determining the unilaterality of the process and the low level of unit price based on a comprehensive understanding of the structure of the transaction in which the pricing has been made. In this regard, Article 4(2)5 of the Act is important in that it facilitates the determination of whether price decisions have been made unfairly between the parties in subcontract whose status is not asymmetrical in such industries as shipbuilding, where it is difficult to find a standard for price comparison. If so, the importance of the various circumstances supporting the unilaterality of the payment decision in the application of Article 4(2)5 needs to be sufficiently emphasized, with the relative importance of the judgment on the relatively ‘low unit price’ being somewhat reduced. However, it is regrettable that the court rulings on cases involving unfair subcontracting decisions in the shipbuilding industry reviewed in this paper did not deal with the issue heavily, but rather highlighted issues such as whether the time value was “unit price” or “low unit price.” If the legislative purpose of the Subcontracting Act and the intent of Article 4 are more actively engraved, a practical insight into whether the allocation of profits between the parties to the Subcontracting Act is a fair price decision based on the specific productive and transactional characteristics of the industry, rather than on the question of literary inclusion or interpretation of each component.