공정거래법상 도산기업의 항변에 관한 비교법적 연구

Abstract

The firm mergers shall be prohibited if they limit the market competition, but some of them limiting the competition are permitted exceptionally if they meet certain requirements, it is called the failing firm defense. The failling firm defense originated from the failing firm doctrine which has been developed in the U.S. The doctrine of the failing firm is that the anit-competitive mergers can be permitted if it is the only way to prevent the merged company from being expelled from the market for the purpose of sustaining market- competitiveness. The ground for the failing firm defense is efficiency could be enhanced through saving social cost if firm mergers are permitted rather than if they are expelled from the market. In case of the failing firm defense, if some requirements are met, the merger will be permitted regardless of its effects on the market and if the decision for the exceptional permission is correct, considerable economic benefits can be generated, so it is necessary to enhance precision and efficiency of the failing firm defense judging. In this context, comparing standards of judging, decisions and judgments related to the failing firm defense in the US, EU and Korea, they make no great difference in the basic frame of the failing firm defense itself: the great probability of business failure, the inevitable exit from the market of the assets and non-existence of no less anti-competitive alternative purchasers. The great probability of business failure means that a company is in insolvency because of deterioration of its financial construction or it can be in that condition any time soon. The inevitable exit from the market of the assets implies that it is possible assets of the merged company such as production facilities can not be reused in the market without the merger. Non-existence of no less anti-competitive alternative purchasers purports there should not be a less anti-competitive substitute purchaser than the one in the merger. However, in case of the United States, it requires non-existence of possibility for reconstructing a company in addition to the requirement of the danger of insolvency in terms of examining the possibility of bankruptcy, while EU and Korea consider the possibility of reconstructing a company one of the grounds to examine the danger of insolvency. On the other hand, EU shows the difference from the US and Korea in that the lack of causality with anti-competitiveness in the market is the ground for permitting the anti-competitive merger with a failing firm. Recently, there is a view to apply the lack of causality doctrine to our guidelines on the mergers related to the failing firm defense. It divides the merged company into two cases when examining the requirements of the failing firm defense, the first one is the company which is not able to be rebuild and the second one is the company which is possibly going to be decided as a bankrupt company. It permits the merger with the first case company because it is difficult to decide the merger with the first case company causes anti-competitiveness of the market, and it demands closely examining requirements of the failing firm defense in case of the merger with the second case company comparing anti-competitiveness of the market and social benefits from the merger. It seems that more studies are needed on the lack of causality doctrine because it can improve efficiency of review standards for the failing firm defense.