디지털경제에서의 기업결합과 동의의결제도 활성화방안

Abstract

When the consent order system was first introduced into Korea’s antitrust enforcement regime in 2011, it was generally expected that consent orders would soon play a signifiant role in the merger control practice of the Korea Fair Trade Commission (“KFTC”). Since then, however, there has only been one merger case to date that has utilized the consent order process, indicating that the current system is ill-equipped to expedite the KFTC’s merger review process and provide greater efficiency. Therefore, in order to promote the use of consent orders in merger cases, it will be necessary to modify the system and mode of operation so that it may, as originally intended, facilitate swifter resolution of potentially anti-competitive mergers, which will be particularly relevant in the dynamic digital economy. This paper explores various ways to promote the use of consent orders for merger cases in Korea, particularly in the digital economy, and proposes recommendations on how to amend the current consent order system for that purpose. First, as the current system is designed for all types of antitrust issues, including those concerning violations that occurred in the past (e.g., collusion, abuse of market dominance), the system should be amended so that there is a separate set of rules for merger cases, which concern potential anti-competitive effects that may occur in the future as a result of the proposed transactions. Second, the system should better ensure expediency and efficiency by requiring the entire consent order process for mergers to be completed in about three months. Even if any of the intermediary steps requires an extension, such extension should be permitted within a short period of time. Third, it should take less time to gather feedback from interested parties, while the KFTC should reach out to the parties’ major competitors, suppliers or customers to ensure that they have sufficient opportunity to express their opinions on the case, thereby ensuring procedural efficiency and fairness. Meanwhile, because merger cases (unlike certain other antitrust matters) do not warrant criminal sanctions, the KFTC should be exempt from the requirement to consult with the Prosecutor General before approving the consent order for merger cases. Finally, in order to enhance the foreseeability of the merging parties, it seems necessary to simplify the requirements for approving consent orders to “when the proposed remedies are designed to effectively resolve the anti-competitive concerns raised by the proposed merger.”