현대자동차와 기아자동차의 기업결합은 왜 허용되었을까? - 도산법과 공정거래법의 역할을 중심으로 -

This paper aims to explore the reasons why Korean Fair Trade Commission (hereinafter KFTC) allowed the Hyundai Motor Company to merge with the Kia motor Company. Under the Monopoly Regulation and Fair Trade Act, no one shall practically suppress competition in a particular business area by conducting practices except that where the effect of efficiency promotion attainable through the combination of enterprises is more than the negative effect produced by restricted competition(efficiency effects defense); or where such combination is made with non-viable company whose total capital in a balance sheet is less than its paid-up capital for a reasonable period of time(the failing firm defense). To succeed with an efficiency defense under Monopoly Regulation and Fair Trade Act, a dominant company would need to show that: the efficiency gains that are likely to result from the potentially abusive conduct offset any likely negative effects on competition and consumer welfare generated by that conduct; those efficiency gains have been, or are likely to be brought about as a result of the potentially abusive conduct; the potentially abusive conduct is necessary for the achievements of those efficiency gains; and the potentially abusive conduct does not eliminate effective competition by removing all or most existing sources of actual or potential competition. Also the failing firm can be applied only if it can be shown that there are no alternative less anticompetitive mergers. And the law goes further and requires evidence that if the merger were prohibited, the assets of the failing firm would leave the market. Actually, Hyundai Motor Company did not show efficiency effect or failing firm defense which was needed for acquisition. However they got the permission of the KFTC. The systemic risk is a key to find an answer the reason that why KFTC allowed the Hyundai Motors Company to merge with the Kia Motor Company during Asian Financial Crisis. While the Asian financial crisis, the Korean government had not many choices except to resolve market disaster as soon as possible. Therefore KFTC gave the permission to the Hyundai Motor Company. Besides, before the Asian Financial Crisis, economic recessions in history were always accompanied by relaxation or abandon of competition policy in many countries. And the law(Monopoly Regulation and Fair Trade Act) also supported this decision by this clause which “the purpose of this Act is to strive for balanced development of the national economy.” Development of national economy required not only competition in the market but also stabilization of the market which obtained by Hyundai and Kia's merger.