공정거래법상 기업결합 신고 및 심사제도의 효율화 방안

Abstract

As of 2021, the number of merger notifications in Korea is 1,113, well over 1,000, and is steadily increasing. As such, the excessive number of merger notifications causes the FTC's burden and delay in the investigation process, and the relatively low level of Korea’s merger notification standards compared to overseas cases is also an important cause. In Korea, it is possible to reduce the number of merger notifications by raising the notification standards, and like Germany, it is also possible to consider setting the total sales standard for all companies participating in the merger. Under the Fair Trade Act, the notification of a merger must be made within 30 days of the date of the merger (the main body of Article 11 (6) of the Fair Trade Act). If competition restraints are found as a result of the merger investigation, legal uncertainty exists due to the post-notification as companies are obligated to restore themselves to the level before the mergers, which is a burden on both the companies and the FTC. Therefore, the Fair Trade Act needs to adopt the pre-notification principle for all mergers, and it is necessary to reduce the scope of companies subject to notification by raising the criteria in order to ease the burden on companies arising from such new principle. Article 11 (7) of the Fair Trade Act states, “When the Fair Trade Commission receives a notification pursuant to paragraph (6), it shall examine whether it falls under Article 9 within 30 days from the date of notification and inform the notifier of the result. However, if the Fair Trade Commission deems it necessary, the period can be extended within 90 days,” and takes the approach to extend the period of 90 days after preferentially investigating the mergers within 30 days. However, there is a problem that the distinction between a merger that needs to be closely examined and those that do not is unclear in the investigation procedure, since this provision does not explicitly imply the step-by-step investigation of mergers. As a result, there is a possibility that the investigation process may be delayed even in the case of a simple merger without competition restraints that can be approved in a short period of time. As in the case of major foreign countries, the EU, Germany, the United Kingdom, the United States, and Japan all adopt explicit two-stage merger investigation procedures to ensure rapid progress for the mergers without competition restraints, which is worth considering. As another alternative, a plan to expand the scope of the simplified examination system under the Fair Trade Act can be considered. In order to solve the problem that the company is passive in participating in the FTC's investigation process and corrective action design even if there is competition restraints in the merger, it is necessary to introduce a correction plan submission system of the company in the Fair Trade Act, which is adopted by major countries. It will be possible to join the global standard in the merger investigation process, by introducing a correction plan submission system for the companies that participated mergers in the Fair Trade Act, which also will enable the FTC take corrective measures that are more sophisticated and appropriate for the market situation by inducing active participation of the company.