규모성 지원행위의 성립요건 판단기준 검토

Under the Monopoly Regulation and Fair Trade Act, unfair support practices are generally categorized into three types: price-based support, scale-based support, and intermediary-level support. Among these, establishing the existence of scale-based support requires the presence of three elements: (i) a considerable scale of transactions, (ii) the provision of excessive economic benefits, and (iii) unfairness, including supporting Intent and the distortion of fair trade. However, it is difficult to derive clear criteria for these elements solely from the Korea Fair Trade Commission’s guidelines. Accordingly, it is necessary to examine how courts have assessed whether conduct constitutes scale-based support in major cases. Among the constituent requirements of scale-based support, the provision of excessive economic benefits and supporting Intent are particularly significant in distinguishing lawful large-scale internal transactions from unlawful scale-based support. In a series of recent rulings, the courts have clarified that proving the ‘arm’s length price’ is not strictly required to determine whether excessive economic benefits were conferred. Nevertheless, they have emphasized whether the transaction terms, especially the price, were favorable to the support recipient. In addition, in evaluating supporting intent in the context of scale-based support, the courts appear to place significant weight on the rationality and legitimacy of the transaction, including how the counterparty was selected and how the transaction terms, such as price, were determined. In conclusion, the core requirements of scale-based support—namely the provision of excessive economic benefits and supporting intent—are primarily evaluated based on the rationality and legitimacy of the transaction price and counterparty selection. In light of this, from a compliance perspective, an effective risk management strategy would involve retaining objective evidence that the transaction price with the affiliate was reasonably determined and that entering into the transaction with that affiliate was rationally justified. For the Korea Fair Trade Commission, it is important to refine its guidelines in light of recent judicial precedents to ensure consistency and predictability. The judiciary, in turn, should recognize that large-scale intra-group transactions may sometimes be rational or legitimate, and adopt a more cautious and balanced approach.