기업결합 승인에 대한 경쟁사업자의 사법상 쟁송 가능성에 관하여 - 행정소송법 개정 및 공정거래법상 금지청구권 도입에 즈음하여 -

In South Korea, competitors could not challenge the decisions of the Korea FairTrade Commission (“KFTC”) approving mergers in court because theAdministrative Litigation Act (“ALA”) and the Supreme Court’s precedentshad a very narrow definition on the standing of third parties for any claimsagainst governmental decisions. In the foreign jurisdictions, however,competitors have standing to claim against mergers which would damagethem after closing. In the United States, Brunswick and Cargill introduced aconcept of “antitrust injury” to determine the standing of the Clayton Act §4and §16 claims, which is injury of the type the antitrust laws were designedto prevent and that flows from that which makes the defendants’ actsunlawful. In a recent case, Sprint, a US district court sustained the plaintiffs’antitrust injury in a motion to dismiss context on the ground that foreclosinga competitor’s access to a necessary input with a monopsony power acquiredby the proposed transaction is the type of injury the antitrust laws weredesigned to prevent. The court also held that, where private plaintiffs havesuccessfully pleaded antitrust injury, the fact that they are defendants’competitors is no bar. In the European Union, competitors, as non-privilegedplaintiffs, can claim against the European Commission (“Commission”)’sdecision to approve mergers only in case they have direct and individualconcern with the decision. Although the European Court of Justice (“ECJ”)had held that the mere fact that a measure may exercise an influence on thecompetitive relationships existing on the market in question is not enough toallow any trader in any competitive relationship with the addressee of the decision to be regarded as directly and individually concerned by thatmeasure, recent EU court precedents show that many competitors withsufficient interest can file lawsuits against the Commission’s decision in favorof proposed mergers. Under the current jurisprudence of South Korea whichrequires individual, direct and specific interest for third parties to havestanding to claim any government agency’s decisions, competitors may notchallenge approvals to mergers in their relevant market. But under theproposed bill of the ALA which broadens the standing, competitors are morelikely to successfully file lawsuits or apply for court orders to cease theproposed mergers. Especially, competitors would have more chance to havethe standing for challenging the regulator’s authorization in court in case thata proposed merger would raise the concern about exclusionary conducts orpredatory pricing after closing. It would be desirable for sound discussion onmergers and competition law in South Korea. If the injunctive relief of theClayton Act were to be introduced into the Monopoly Regulation and FairTrade Act (“MRFTA”), Korea’s main antitrust statute, such discussion wouldbe more vigorous.