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Deals & Cases

Unfair intra-group support

Response to a Fair Trade Commission Investigation | Unfair Intra-Group Support, Minimal Penalty Surcharge Through the Assistance of a Corporate Law Attorney

This is a case in which a corporate client that became subject to an investigation by the Fair Trade Commission concluded the matter without an excessive penalty surcharge through early response and the strategic assistance of a corporate law attorney.

CONTENTS
  • 1. Fair Trade Commission Investigation: A Client Who Requested Assistance
    • - How the Matter Came to Be Subject to Investigation
  • 2. Statutes Relevant to the Fair Trade Commission Investigation
    • - Corrective Measures and Penalty Surcharge
  • 3. Fair Trade Commission Investigation: Matters of Assistance by a Corporate Attorney
    • - Demonstrating the Reasonableness of the Transaction
    • - Proving the Absence of Involvement by a Person With a Special Relationship
    • - Clarifying the Legal Criteria
  • 4. Result of the Fair Trade Commission Investigation Matter: "No Suspicion of Crime for Most Allegations"
    • - If You Are Facing a Fair Trade Commission Investigation

1. Fair Trade Commission Investigation: A Client Who Requested Assistance

Circumstances of the Fair Trade Commission Investigation Assistance Request

The client, facing a Fair Trade Commission investigation, came to a corporate law attorney to request assistance after an investigation was launched based on an external report concerning unfair intra-group support.

How the Matter Came to Be Subject to Investigation

The client, a domestic manufacturing company, was the subject of an internal audit finding that certain affiliated companies had received preferential benefits during the process of contracting for overseas raw material supply.

After receiving notice of an on-site investigation by the Fair Trade Commission over this issue, the client requested the assistance of an attorney specializing in fair trade in order to minimize the company's legal liability and the scale of any potential penalty surcharge.

The matter became the subject of investigation as a result of an external report alleging that the client's transactions could operate to the advantage of certain affiliated companies.

The transaction terms and the internal decision-making process became the subject of review by the Fair Trade Commission.

From the early stages of the matter, the client requested the assistance of an attorney specializing in corporate matters in order to minimize the risk of a criminal accusation and the burden of a penalty surcharge.

2. Statutes Relevant to the Fair Trade Commission Investigation

Under Article 45, Paragraph 1, Item 9 of the Monopoly Regulation and Fair Trade Act, the act of unfairly providing economic benefits to a person with a special relationship is prohibited as an unfair trade practice.

▶ Monopoly Regulation and Fair Trade Act, Article 45 (Prohibition of Unfair Trade Practices)

(1) No business operator shall engage in any act falling under any of the following items that is likely to harm fair trade (hereinafter referred to as an "unfair trade practice"), or cause an affiliated company or another business operator to do so.

9. The act of unfairly supporting a person with a special relationship or another company through any act falling under any of the following sub-items
(a) The act of providing a person with a special relationship or another company with advance payments, loans, manpower, real estate, securities, goods, services, intangible property rights, and the like, or trading with them on substantially favorable terms
(b) The act of, despite it being substantially more favorable to trade goods or services directly with another business operator, conducting the trade through a person with a special relationship or another company that has no substantial role in the transaction

Here, a person with a special relationship includes a person who in effect controls the company, a person related to the same person, and a person who participates in a business combination with the common purpose of controlling management.

Corrective Measures and Penalty Surcharge

Where an unfair trade practice, such as unfair intra-group support, is confirmed, the Fair Trade Commission may impose corrective measures and a penalty surcharge.

1. Corrective Measures

The Commission may order the business operator concerned to take necessary measures, such as cessation and measures to prevent recurrence, prohibition of retaliatory measures, deletion of the contractual provisions at issue, and public announcement of the fact of the corrective order (Monopoly Regulation and Fair Trade Act, Article 49).

2. Penalty Surcharge

The Fair Trade Commission may impose a penalty surcharge on a violation within a certain percentage of revenue.

In general, a penalty surcharge is imposed within a range not exceeding 4% of revenue, and even where there is no revenue, a penalty surcharge of up to 1 billion won may be imposed(Monopoly Regulation and Fair Trade Act, Article 50).

3. Fair Trade Commission Investigation: Matters of Assistance by a Corporate Attorney

Matters of assistance by a corporate attorney in a Fair Trade Commission investigation

The issues in this matter were as follows.

1. Whether the transaction was consistent with ordinary business judgment and reasonableness
2. Whether there was any involvement of a person with a special relationship or an intent to misappropriate private profit

On the basis of these issues, the attorney specializing in corporate matters provided the following strategic assistance so that the client would not bear an unnecessary legal burden.

Demonstrating the Reasonableness of the Transaction

The attorney specializing in fair trade closely analyzed the overseas raw material prices, transportation costs, and supply chain risks at the time of the contract.

Through this, it was demonstrated that the transaction did not differ significantly from the market average and was an unavoidable choice from the company's standpoint.

On the basis of the analysis results, the reasonableness of the transaction was logically explained to the Fair Trade Commission.

Proving the Absence of Involvement by a Person With a Special Relationship

In order to demonstrate that there had been no involvement of any affiliated company in the transaction decision-making process, the internal meeting minutes, approval documents, and the statements of the persons in charge were compiled.

Through this, it was objectively demonstrated that there was no intent to misappropriate private profit.

As a result, the aim was to strengthen the client's defense and to forestall unnecessary suspicion during the investigation.

Clarifying the Legal Criteria

It was explained as a matter of legal principle that the criteria for taxation under tax law and for a determination of unfair support under the Monopoly Regulation and Fair Trade Act are different.

By emphasizing that a tax disposition does not automatically lead to a finding of unfair support, the aim was to minimize the client's legal burden.

4. Result of the Fair Trade Commission Investigation Matter: "No Suspicion of Crime for Most Allegations"

Through legal defense and the submission of evidence during the investigation, the client was able to conclude the matter with a minor penalty surcharge and corrective measures.

In addition, the possibility of a criminal accusation was forestalled, and the client was able to maintain business stability.

If You Are Facing a Fair Trade Commission Investigation

A Fair Trade Commission investigation is a procedure that closely reviews a company's transactions as a whole and its internal decision-making process, and it requires both legal judgment and analysis of the facts.

When a company responds on its own, it is difficult to demonstrate the reasonableness of a transaction and whether a person with a special relationship was involved, and the resulting burden of a penalty surcharge and corrective measures may become unnecessarily large, so a strategic response with the assistance of a specialized attorney is necessary.

Drawing on its practical experience in fair trade matters, this firm provides a tailored response and a proactive defense strategy suited to the client's circumstances, and works diligently to reduce unnecessary risk.

If you are facing a Fair Trade Commission investigation and need legal assistance, 🔗Legal Consultation Booking, please reach out for assistance.

Watch related video content
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  1. Fair and just! Fair Trade Commission investigation preparation campaign with lawyers

This content is based on actual case studies of Daeryun Law LLC with some adaptations, and the copyright belongs to our firm.
Unauthorized reproduction, duplication, or distribution and other copyright infringements may result in legal action under applicable laws.

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