경쟁법상 겸직이사회에 대한 고찰 - 클레이튼법 제8조와 공정거래법 제9조 제1항 제2호를 중심으로 -

Interlocking directorates means serving as a director on the board of directors of more than one company. There is nothing illegal about serving as a director of more than one company. However, section 8 of Clayton Act prohibits interlocking directorates under certain conditions. The purpose of section 8 of Clayton Act is to eliminate the opportunity for a company to engage in anticompetitive behavior before it happens. Section 8 of Clayton Act makes the interlocking directorates per se illegal, and DOJ and FTC do not need to prove an anticompetitive harm. In the US, there is still no clear judgment criteria of the meaning of corporation, deputization theory, the definition of the competitors. In the US, DOJ and FTC have recently emphasized antitrust law concerns about interlocking directorates and have stepped up enforcement of interlocking directorates. As a result, companies are increasingly removing interlocking directorates on their own initiative. The Korean competition law prohibits business combination that substantially restricts competition in a particular business area and stipulates that concurrently holding an executive position is one of the means of such business combination. In a business combination, the formation of a control relationship is important in terms of the independence of the companies, and concurrently holding an executive position is judged based on whether the acquiring company can exercise substantial influence over the overall management of the acquired company. The US and Korea have different views on interlocking directorates. In the US section 8 of Clayton Act provides for strong regulation of interlocking directorates. It makes interlocking directorates per se violation by noting the likelihood of collusion such as exchanging information in terms of illegal cartel conduct. In comparison, Korea has relatively weak regulations. In terms of business combination, the Korean competition law treats concurrently holding an executive position differently from other types of business combination such as acquiring shares because the Korean competition law regulates concurrently holding an executive position only in the case of large company and it requires ex-post report. In addition, the recent amendment to the Korean competition law includes that where the number of executive officers who concurrently hold office is less than 1/3 of the total number of executive officers of the company for which the executive officer concurrently holds office, and he or she concurrently holds office of an executive officer who is not the representative director, the ex-post report will be exempted. On the other hand, there are not many cases of interlocking directorates in both the US and Korea, which may mean that interlocking directorates are less likely to restrict competition in practice. In addition, there are procompetitive effects of interlocking directorates. The sharing of information about managing company can reduce costs, and cooperation between companies with interlocking directorates can increase managerial efficiency. To the extent that interlocking directorates are regulated, it can be regulated through a director’s duty of loyalty under company law. From a competition law perspective, it is possible to regulate interlocking directorates as illegal cartel conduct by focusing on the realization of the likelihood of collusion. Therefore, it is not advisable to view interlocking directorates as an independent subject of competition law. A fundamental discussion of the prohibition of interlocking directorates under the current competition law is needed.