중국 반독점법상 기업결함 심사에 관한 고찰

Abstract

China introduced the Anti-trust law of the People's Republic of China (Antitrust Law) in August 1, 2008. The law regulates collusion, misuse of market dominance, corporate ownership concentration (corporate merger), and exclusion as well as limits of competition stemming from misuse of administrative power. Since the implementation of the Antitrust Law, however, China’s State Council delayed legislation of detailed rules, leaving uncertainties over the law enforcement and application. Such circumstances may be unfavorable for Korean companies, which have close economic relationship with China. Accordingly, it is significantly meaningful to understand China’s Antitrust Law and its application. This thesis will study the corporate merger-related regulation, which is one of the subjects that the Antitrust Law pursues and is actually being executed. Countries that restrict monopoly ease uncertainties that exist in antitrust law by setting rules and guidelines. The thesis includes analysis of corporate merger-related regulations as well as the initial draft of guidelines for the regulations established by the executive authority (Ministry of Commerce). In addition, the thesis will help comprehensive understanding of China’s monopoly regulation by studying two cases released by the Ministry of Commerce. It is positive that the Ministry referred foreign countries’ competition laws for its initial draft of guidelines and fully accepted existing law theories. However, legislative inadequacy of criteria for judging competition restrictiveness of corporate mergers is pointed out as a problem to solve. Among the two cases revealed by the Ministry of Commerce, the case of Coca-Cola Company carries significant meaning, as it was the first company that was prohibited by the Ministry of Commerce from acquiring a local company, and the case enhanced effectiveness of the law. On the other hand, however, it also caused legal and social controversies because reasons for the prohibition were not explained enough and related figures were not provided. Difficulties will remain for the law enforcement and companies will still be in a whirl even after detailed enforcement regulations for corporate merger examination are promulgated. Since the implementation of the Antitrust Law, there have been voices that the Law should be supplemented in order to solve the issues, and the result will be a key to determine the success of corporate merger examinations and China’s antitrust policies.