공정거래위원회의 최근 하도급법 위반 심결례 회고 – 조선업에서의 부당한 하도급대금 결정 사례를 중심으로 -

Daewoo Shipbuilding &Marine Engineering Case (2013) is a case where the act of unilaterally applying the “productivity improvement rate” and calculating the number of hours lower than the actual consignment content, while Daewoo Shipbuilding &Marine Engineering Case (2019) is a case where the act of lowering the subcontract price by applying the “efficiency rate” of the revised additional work lower than the “efficiency rate’ of the main construction (the ratio of the actual input time). In addition, the Korea Shipbuilding &Marine Engineering Case (2020), Samsung Heavy Industries Case (2020), and Daewoo Shipbuilding &Marine Engineering Case (2021), which were handled by the Fair Trade Commission (“FTC”), are problematic cases in which the actual input was excessively reduced and the subcontract price was lower than the manufacturing cost. In all of the above cases, the essence of the act can be said to be the randomness, opacity, and excessive reduction of the calculation of the number of hours applied to the calculation of the actual subcontracting price. However, since the “time-value” contract itself is difficult to see as a contract that compensates for the actual working hours invested (the time required for "work completion" may vary depending on the worker's skill level), it is difficult to say that the “time-value” is illegal or unfair just because there is a gap with the actual input time of the contractor.Considering the transactional status of the principal contractor, the “time-value“ contract may be said to be a contract method with room for abuse by the principal contractor. However, in the process of applying Article 4 (2) 5 of the Fair Transactions in Subcontracting Act (“Act“) to attempts by the principal contractor to lower subcontract payments using the framework of the “time-value“ contract, it is difficult to find a benchmark, which is the standard for 'low unit price'. This provision is a non-rebuttable presumption clause to facilitate proof of Article 4, Paragraph 1 of the Act, but in reality, it does not function as such. According to Daewoo Shipbuilding &Marine Engineering's ruling, even if the market price is unilaterally calculated in favor of the original operator, it must be proved that the resulting "subcontract price" is lower than "general price" in the shipbuilding industry. This difficulty seems to have led the FTC to adopt a method of comparing subcontracting payments with "manufacturing prices" in the Korea Shipbuilding &Marine Engineering Incident (2020), and it will be necessary to see if the legal grounds can be resolved. The progress of administrative litigation should be followed, but as a solution to the above problems, it may be possible to think of amending Article 4 (2) 5 (or 1) of the Act (e.g. one of the specific measures might be deleting "at a uniform rate" in Article 4 (2) 1 of the Act and amend it to be read "decide on subcontracting without justifiable reasons"). For example, under the Monopoly Regulation and Fair Trade Act, it is possible to consider approaching the problem of exploitation and abuse of demand-dominant enterprises, or applying sector-specific regulations based upon the point of view that the problems associated with the “time-value“ contract are sector-specific problems happening in the shipbuilding industry.