기업결합규제의 합리화방안

Abstract

The Study on reasonable schemes about regulation of enterprise combining

Kim, Ku-Jong Advisor: Prof. Kwon, Sang-Ro Department of Law Graduate School of Chosun University

Generally enterprise combining conducted for purpose of corporate existence and growth may bring higher efficiency to the market which the consolidating companies belong to, but they are likely to cause anticompetitive effect. For this anticompetitive side effect enterprise combining are under considerable regulation world-wide, and Korea also prohibits enterprise combining which substantially restrict the competition in the certain line of business. Types of enterprise combining prohibited by the Monopoly Regulation and Fair Trade Act(FTA) are listed in Article 7. Also, according to Korean Merger Guidelines(Guideline) established by Korean Fair Trade Commission(KFTC), formation of control is required between the consolidating companies to the extent that the companies could be treated as single competing unit. The purpose of this study is to propose the problems and improvement schemes about enterprise combining regulations through comparative study between foreign law system and domestic law system and analysis of KFTC's cases. Types of enterprise combining according to the FTA and the requirement of formation of control according to the Guidelines are highly important factors in considering a enterprise combining since whether a merger is subject to the antitrust regulation is determined by those standards. Thus a enterprise combining which is not listed as the prohibited enterprise combining stipulated in the Act will not be subject of enterprise combining examination, and even though the enterprise combining conforms to one of the prohibited types, it will not be deemed as the anticompetitive enterprise combining by the KFTC if it lacks the requirement of formation of control. Hence this article will survey types of enterprise combining which are subject of regulation under the Act and the requirement of formation of control with emphasis on provisions of the FTA and the Guideline, and it also will survey analyse decisions by KFTC on those matters. To make an improvement in enterprise combining remedies system, conditional approval of enterprise combining transactions might be considered in the first place. Conditional approval of merger transactions, the system allows KFTC to clear the enterprise combining if the commitments suggested by merging parties address anticompetitive effects raised by enterprise combining, could be a meaningful measure to achieve effectiveness of remedies and foreseeability of merging parties. Reformation of enterprise combining remedies guideline can also contribute to stabilization of enterprise combining regulation system by codifying preference of structural measures and standards of imposing remedies. In addition, by forcing KFTC to instruct the reason of why they impose certain measures and giving interested parties the opportunities being heard on the remedies, misuse of discretion of KFTC could be prevented and transparency of enterprise combining regulation procedures could be guaranteed. Furthermore, as a means of proper monitoring of implementation of remedies, the introduction of trustee system might be also necessary for the accomplishment of the object of enterprise combining regulation.