공정거래법상의 기업집단 규제의 현황과 과제

Abstract

The purpose of The Korean Monopoly Regulation and Fair Trade Act(the Act) is to promote fair and free competition, thereby encouraging creative enterprise activities, protecting consumers and striving for balanced development of the national economy. The Act also contains regulations reflecting the conditions specific to Korea,including ban on unfair support among affiliated companies of a large business group, prohibition of abuse of superior position, restrictions on holding companies, and limitations on cross-shareholding and debt guarantees. This is a unusual regulation without comparable provisions in foreign Antitrust Act. It’s not that meaningful to regulate a small enterprise group from the perspective of economic power concentration. Therefore, a large business group which has or may have concentrated economic power is subject to regulation. Under the Act, a large business group is defined as a business group whose total assets satisfy certain criteria. The asset criteria for the ceiling on total equity investment had been raised several times, continuously reducing the scope of application. Finally, the ceiling was lifted in March 2009, so designation of a large business group is solely based on the criterion for prohibition on cross-shareholding. Under the Act, such criterion is not less than 5 trillion won of total assets, and 53 chaebols are designated as large business groups as of May 2010. Cross-shareholding refers to two companies’ acquiring or owning the stocks of each other. While this conduct is not in line with the principle of capital adequacy under the Corporation Act, it is also a problem from the perspective of the Act since large business groups took control of companies and concentrated their economic power by taking advantage of cross-shareholding without actually investing in the equity of the companies. As the ceiling on the total amount of shareholding was lifted with the amendment to the Act in March 2009, the only remaining regulation on shareholding is the prohibition on cross-shareholding. Although indirect or circular shareholding cannot be regulated under the existing law, regulation on cross-shareholding is still needed because this practice can be used as a means of strengthening corporate control and increasing the size of affiliate companies by facilitating the creation of fictitious capital. As direct cross-shareholding alone is subject to prohibition on cross-shareholding, indirect or circular shareholding is not effectively regulated. To supplement this system, the ceiling on the total amount of shareholding was introduced when the regulations to curb concentration of economic power were enacted in 1986. But this regulation was abolished with the amendment to the Act in March 2009. Undue Assistance refers to an act of assisting a specially-related person or other companies by providing goods, services, funds, assets and manpower for free or under extremely favorable terms. Recently the Korea Fair Trade Commission has imposed penalty surcharge on seven affiliates of the SK Group. This measures is the first case of exposing and restricting conglomerates’ unfair support for affiliates by giving work under excessively privileged terms in the SI (systems integration) industry. It has put the brakes on unfair internal transactions that generate excessive revenue for affiliates where the chairman’s family holds the highest stake.