공정거래법상 부당지원행위의 경제적 급부와 정상가격- LS 판결의 외형주의 분석 방식에 대한 비판 -

In the LS case, the court regarded the act of providing a volume discount based on the "aggregated purchase volume“, justified by the integration of the amounts that had been purchased separately by multiple affiliates, as a normal change in transaction terms. The copper wire manufacturer, which had been selling directly to four demand subsidiaries, started selling through an "integrated purchasing corporation" established for the purpose of unlawful assistance, and provided a volume discount. The court ruled that the arm’s length price should be determined based on the integrated purchase volume. The court viewed the "purchase volume integration" by the integrated purchasing corporation, acting as a substitute for the four subsidiaries, not as a sham pretext for receiving a volume discount, but as a normal transation term that has economic value equivalent to the discount amount. The Monopoly Regulation and Fair Trade Act defines unfair assistance practices as acts of providing economic benefits through transactions with favorable terms. To assess whether a transaction is under a favorable term, the concept of the "arm’s length price," a highly abstracted analytical tool, is employed. The court has required it to be derived by comparing with similar transaction cases. Specifically, it insists on finding actual transaction cases where the consideration provided is identical to that in the transaction at issue and is provided between independent parties under similar circumstances. Until now, the issues of arm’s length prices in unfair assistance practice cases have centered primarily on the similarity (“comparability”) of comparable transactions. However, the LS case raises novel issues from the very nature of the actual transaction at issue. Specifically, if a business engineered a transaction to appear as if it were under normal terms, using bogus consideration or expected benefits as justification, assessing the substance of the transaction in question can be a starting point in analysis for determining the arm's length price. This study examines the criteria for determining the arm's length price in unfair assistance practices. It highlights the fact that the LS decision focused on the appearance of the transaction during the process of deriving the arm’s length price. It also emphasizes the need for a substance-based analysis approach, taking into account the court's previous precedents and the legislative intent of regulating unfair assistance practices.