혼합결합의 경쟁제한성 심사기준의 개선방안

Abstract

This article aims to review and analyze the contents of standards for competition restrictiveness of conglomerate mergers presented at the current korean competition law and merger guidelines. Conglomerate mergers are between firms that are in a relationships which is neither horizontal(as competitors in the same relevant market) nor vertical(as supplier and customer). Generally it is acknowledged that conglomerate mergers will not cause any competition concerns, but in certain specific cases there maybe harm to competition. Thus competition law searches for ways to identify those mergers that threaten competition. These are condemned, even though they may create significant economies. According to korean competition law, the Monopoly Regulation and Fair Trade Act, mergers violate article 7, (1) if they are likely substantially to lessen competition. In practice, conglomerate mergers may be evaluated by the Korean Fair Trade Commission(hereinafter the KFTC) based on Merger Guidelines. At the present time, Merger Guidelines stated that three categories of conglomerate mergers will be regulated; mergers which may eliminate a potential competitors or exclude competitors(foreclose market) on the relevant markets or reduce future competition by increasing barriers to entry. These three standards for evaluating illegality of merger should be applied independently. However the Merger Guidelines fail to define some core terms(concept) of anti-competitiveness of conglomerate mergers and the other major shortcoming of these Guidelines is their failure to consider the important element of competition. Thus, it needs more discussion for designing appropriate liability rules for conglomerate mergers, as well as the content, form, usefulness of conglomerate merger guidelines. In assessing whether a conglomerate merger is likely to have the effect of substantially lessening competition in a relevant market, some related factors of the merger to be taken account. For example, the level of concentration in the market, market power(or market position) of the parties, the height of barriers to entry to the market, the degree of countervailing power, etc. The Guidelines set forth structural thresholds to identify merger transactions that give rise to a competition concerns. Under the guidelines, the KFTC is unlikely to find any competition problems in conglomerate mergers, where the market share of the parties in the relevant market is less than 25% and the HHI is under 2500, or the entity is not one of the three largest firms in each markets(so-called 'safe harbour' standard). KFTC will use the preceding HHI and market share thresholds as an initial indicator of the absence of competition concerns. In a case where the markets in question are highly concentrated and each markets are closely related(neighboring or complementary), conglomerate mergers may cause significant competition problems. Moreover if one of the parties to a merger already holds a leading or dominant position on one or more of the markets, the abilities and incentives brought together by the merger may immediately create conditions allowing the merged entity to leverage its way so as to acquire, in the relatively near future, a dominant position on the other market or exclude competitors on each markets through tying, bundling and direct foreclosure. In the light of the effect of potential competition, a merger can be anti-competitive by eliminating the prospect of independent entry by a firm whose pre-merger presence on the fringe of the market was perceived and constrained oligopolistic behavior on the part of market participants(perceived potential competition). And a merger can be also anti-competitive which eliminate the potential competition that would have resulted had the acquiring firm entered on its own(actual potential competition). Lastly conglomerate merger may increase the firm's ability to deter entry with it's financial power. If entry barriers to the market strengthened after the merger, it could dissuade the smaller firms from aggressively competing or potential entrants entering the market. But as a fully independent standard of conglomerate mergers, raising entry barrier should be reconsider the conditions and normative validity.