기간통신사업자에 대한 기업결합규제 관할권 -경쟁당국과 산업별 규제기관의 관계를 중심으로

Abstract

The Telecommunications Business Act requires an authorization from the Korea Communications Commission, the communication sector-specific regulator for a takeover of the business of a key communications business operator or a merger with a key communications business operator etc. (Art. 13). A Takeover of the business of a key communications business operator or a merger with a key communications business operator necessarily involves a transfer of control of the operator which is a typical subject of competition laws. The Monopoly Regulation and Fair Trade Act also provides for merger review process by the Korea Fair Trade Commission, the competition authority (Art. 7 and Art 12). The concurrent jurisdiction on mergers and acquisitions involving a key communications business operator creates theoretical as well as practical issues, which includes relationship between competition authorities and sector-specific regulators in particular. The authorization process by the Korea Communications Commission on a takeover of the business of a key communications business operator or a merger with a key communications business operator under the Telecommunications Business Act was not originally introduced as a competition law measure. It has evolved, however, to a process including assessment of competitive effects of the operation. The evolvement created dual jurisdiction of the competition authority and the sector-specific regulator over the mergers and acquisitions involving a key communications business operator. As a practical matter, the two regulatory agencies may produce conflicting judgements on the competitive effects of the operation in question. Different interpretative theories and policy arguments have been presented. Those reflect different theories on the relationship between the competition authorities and sector-specific regulators in the industries which were, in the past, subject to heavy governmental regulation and are, now, being rapidly deregulated. Taking into account legislative intents of the relevant provisions and other policy considerations, this article suggests an interpretation that recognizes the primary jurisdiction of the Korea Communication Commission and the supplementary jurisdiction of the Korea Fair Trade Commission. Moreover it proposes a legislative amendment which unites the dual merger review procedures into one enforced by the competition authority in light of comparative expertise and relevant experiences of the two regulatory agencies.