디지털경제와 기업결합 신고의무의 개선방안

Under the digital economy, the obligation to notify M&As based on total turnover volume, which is a measure of past performance of contracting parties, can lead to regulatory flaws related to business combinations that take over start-ups or pharmaceuticals ventures. The proposed revision of the Korea Anti-Monopoly and Fair Trade Act(hereafter “the Act”) drafted by the Fair Trade Commission (FTC), which further adopts the transaction value threshold, is considered desirable in terms of enhancing the effective enforcement of the merger control of Korea. In order to meet the global standard, it is also necessary to delete the existing total assets threshold and the domestic turn-over threshold for foreign M&As. The specific amount of transaction value will be decided in consideration of amending the enforcement decree of the Act. Two things are to be mentioned; ① the amount can be calculated comparing foreign legislative cases or size of national economy, ② appropriate number of mergers to notify should be considered in order to prevent overload of the KFTC. For this purpose, current 300 billion (won) standard needs to be raised. As for international M&As, it is also necessary to adopt the criteria “considerable domestic activities” along with aforementioned the transaction value threshold. The qualitative criteria such as Germany (the significance of the domestic activities) seems to reduce foreseeability and legal certainty, therefore it is necessary to actively seek quantitative criteria. The problem still remains that the new threshold of transaction value will be applied to all the business combinations that is completely independent of the digital economy or platform economy. In this context, the revision of the enforcement decree should be revised in order to raise the total amount of assets or sales amount to a substantial degree. In case of mergers - especially in the case of international ones – it would be desirable that the KFTC will not investigate mergers without filing obligation. The legal stability will be undermined if they are subject to investigation at any time. As for the “domestic turnover” threshold applied to international M&A should be erased, when the transaction value threshold as amendment is introduced.