입법취지를 무너뜨린 입법 부주의 - 공정거래법상 사익편취의 ‘부당한 이익’ 요건 관련 -

There has been a big controversy over the meaning and judging criteria of ‘unreasonable benefit’ requirement for wrongful benefit-taking under the Monopoly Regulation and Fair Trade Act (hereinafter “Act”) since its enactment in 2013. Finally, in corporate group Hanjin case, the Supreme Court held that the unreasonableness of the benefit attributed to specially related persons means probability of the concentration of economic power being maintained or strengthened, and that this shall be proved by the Fair Trade Commission separately from the existence of the act of providing benefits under Article 47 (1) of the Act. The main ground for such ruling seems to be the wording of the Article 47 (1). This ruling does not, however, conform to the legislative background and accurately recognize the nature of the concept, ‘economic power concentration.’ Furthermore, it may create considerable ambiguity in future law enforcement since the unreasonableness of the benefit attributed to specially related persons could be susceptible to arbitrary judgment of the Fair Trade Commission or courts, such that it is unclear whether the legislative intent could be fully achieved. The biggest cause is the negligence of those involved in the enactment of prohibition of wrongful benefit-taking under the Act. In the future, great care should be taken to prevent recurrence of such negligence in the legislative process, and objective criteria for judging the unreasonableness of the benefit attributed to specially related persons should be presented through Fair Trade Commission’s guidelines to secure consistency and predictability in future law enforcement.