독점규제법상 특수관계인 이익제공의 부당성 판단기준에 대한 고찰: 한진그룹 사건(대법원 2022. 5. 12. 선고 2017두63993 판결) 및 효성그룹 사건(대법원 2022. 11. 10. 선고 2021두35759 판결)을 중심으로

This article addressed the issue of the so-called ‘undue benefits’ to persons who has special relations with big business group in Article 47 of the Monopoly Regulation and Fair Trade Act (MRA), which was stipulated in 2013. As Article 47 does not fall with the scope of competition law, it is not possible to explain Article 47 from the perspective of competition law. However, the Korean Fair Trade Commission (KFTC) has actively enforced Article 47. As a result, the KFTC has become a czar subordinating Korean big business. In the Hanjin Group decision of 2022 and the Hyosung Group decision of 2022, the Supreme Court of Korea for the first time opined that ‘unduess’ in Article 47 means the maintenance and/or reinforcement of economic concentration around persons who has special relations with big business group designated by the KFTC according to the Presidential Decree of the MRA. Even though economic concentration around the persons means ‘ownership concentration’, therie is no evidece that ownership concentration automatically cause adverse effects on the Korean economy. It is desirable to repeal Article 46 because it lacks any reasonable ground. As the problem of ‘undue befenits’ has nothing to do with competition, it should be dealt with corporate law rather than competition law.