중국의「인수합병형 외국인투자 국가안전심사제도」의 고찰

Chinese government has published new rules for national security review (NSR) of mergers and acquisitions between Chines and foreign companies. China's Anti-Monopoly Law (AML), which entered into force in 2008, already provides for national security reviews for foreign M&As, but no mechanism for those reviews has been implemented and so the establishment of a separate and formal security review system has been anticipated. This paper explores the nature of China's NSR regime by comparing with the U.S. and the Korea's regimes. The most prominent feature is that China defines national security much more broadly. Korea's regulations on national security grounds apply only to the transaction cases in industries closely related to military security. The U.S. regime regulates foreign M&As under broader concept of national security, including transactions on critical infrastructure and transactions involving foreign government-controlled entities. By comparison, China's NSR regime expressly indicates that national security includes such concerns as impact on economic stability, basic social order, and domestic R&D capabilities relating to key technologies. It is also noteworthy that China's regime effectively grants government agencies a wide discretion to block, terminate, or impose conditions on a proposed transactions. China's NSR mechanism is likely to provide an additional regulatory hurdle for M&As by foreign investors in China. Economic security test, if widely applied, may raise concerns about domestic protectionism and economic nationalism in China and undermine the China's policy of welcoming foreign investment. It can be also argued that China's regime including economic security test is potentially incompatible with the essential security exception clause of the WTO's services agreement.