경쟁제한적 기업결합의 금지- 한중일 비교를 통한 규제 국제화와 한계 검토 -

Abstract

In free market economic systems, the combination between enterprises is free in principle. However, if mergers restrict competition, they are prohibited. On the other hand, many nations restrict competition by reason of national policies, whereas they allow the combination between enterprises by making an exception on the basis of separate criteria in order to ensure enterprises’ positive functional aspects and national security. As international mergers increase, most countries conduct the extraterritorial application of domestic law to M&A (merger and acquisition). If each state differs in the criteria for evaluating mergers, the collision between national sovereignties occurs. It is essential substantively and procedurally in economic globalization to internationalize the united control on mergers. The subjects of such internalization include merger methods, reporting criteria, the estimation of competition restrictiveness, the measures (scales) of competition restrictiveness, reporting times, review periods, and corrective measures/ criminal punishments. So, the purpose of this study is to compare merger systems in Korea, China, and Japan. Three nations’ controls were substantially similar. However, it is necessary for Korea to examine and improve the introduction of prior reporting principle system, the maintenance of competition restrictiveness estimation, and information management. As Korea has recently enacted the Corporate Vitality Improvement Special Act, it stipulates exceptions on merger control under the Monopoly Regulation and Fair Trade Act if mergers are necessary for business reorganization. It also regulates exceptions on merger control for small and medium-sized enterprises as well as grants exceptions on merger control for national security. Even though these exceptions are acknowledged to be necessary, the scope of those exceptions should be limited and concrete. Unless their transparency and clarity are insured, the sources of disputes with other countries can be caused.