공정거래법상 부당한 지원행위의 위법성 판단 기준

Standard for Illegality of Unfair Assisting Practices under the Korea Monopoly Regulation Act

Competition policy has political and economic goals. Suppression of economic power concentration resolves a social conflict and helps development of democracy through the regulation of the unfair assisting practices as appears by late hypermarket regulation and supporting with volumes of trade of business conglomerates. The purpose of the monopoly regulation and fair trade act is to promote competition and increase consumer welfare. For market in the form of developing country as Korean market with the high percentage of a large enterprise group and barrier to entry, it could establish fair transaction order to regulate practices, to impede or likely to impede competition process and level playing field For a standard of judgment unfairness of unfair assisting practices, it is desirable to identify in impediment of fair trade, not in factors unrelative to competition such as impediment of corporate transparency, protection of minority shareholders and creditors of supporting firms. Interpreting judgment of unfairness as harm to competition, causes results contrary to legislation purpose by categorize unfair assisting practices into unfair trade practices. Competition law and Antitrust law has multi-dimensional purposes. Unfairness in prohibitive provisions of unfair assisting practices, has to be interpreted as European competition impediment in Korean market that free competition except fair competition, could not be presumed. Fair transaction order has to include level playing field regardless of efficiency and competition process to preserve competition opportunities. Fair transaction order must not consist of only composition element of harm to competitor. Unfairness judgment has to be prudent because revised competition law especially could constrict business activity by over-deterrence to relax a prominence requirement into a favorableness requirement