SOUTH KOREA Law and Practice Contributed by: Heejun Choi, Kyoung-Ho Kim, Sungsok Yang, Eunjee Kim and Kwang-Chun Park, Dentons Lee
As a general rule, merger notifications are filed after closing and must generally be submitted within 30 days. However, transactions involving large compa - nies or subject to the transaction-value filing regime require notification after execution of the transaction documents but before completion. The filing must be submitted to the KFTC with infor - mation on the parties, ownership structure, assets and turnover, the transaction, relevant markets and other information necessary for the competitive assessment, together with supporting documents such as transac - tion agreements and corporate resolutions. Simplified procedures may be available for transactions unlikely to raise substantive competition concerns, including certain intra-group transactions. Where multiple par - ties have filing obligations, the notification is generally filed jointly. Following receipt of the filing, the KFTC conducts its review. The statutory review period is generally 30 days, but may be extended by up to 90 days where further examination is required. Transactions raising no significant competition concerns are often cleared within the initial review period. For transactions requiring pre-closing notification, completion is generally prohibited until the KFTC has completed its review and any applicable waiting peri - od has expired. Following its review, the KFTC may: • clear the transaction unconditionally; • clear it subject to structural or behavioural rem - edies; or • prohibit the transaction where it would substantially lessen competition. Accordingly, the Korean merger control process con - sists of determining whether a filing is required, sub - mitting the notification, KFTC review and clearance, conditional clearance or prohibition. 6.3 Cartels Korea maintains a comprehensive competition law regime under the Monopoly Regulation and Fair Trade
Act (“MRFTA”), prohibiting cartels, abuse of market dominance and unfair trade practices. The MRFTA prohibits agreements, concerted practic - es and other forms of coordination between competi - tors that unreasonably restrict competition. Prohibited conduct includes: • price fixing; • allocation of customers, suppliers or geographic markets; • output restrictions; • restrictions on investment or production capacity; • bid rigging; and • other coordination that substantially restricts com - petition. The existence of an agreement or concerted prac - tice is generally sufficient to establish a violation; implementation need not be proved. Price-fixing and bid-rigging are treated as particularly serious infringe - ments. The MRFTA also prohibits abuse of a dominant market position and regulates unfair trade practices, including discriminatory treatment, tying arrangements, unfair customer inducement and interference with business activities. Korea applies an effects-based approach to compe - tition law. The MRFTA extends to conduct occurring outside Korea that affects the Korean market, allowing the investigation of foreign companies whose conduct affects competition or customers in Korea. The Korea Fair Trade Commission (“KFTC”) has broad enforcement powers, including corrective orders, administrative fines and, in serious cases, criminal referrals. Businesses harmed by anti-competitive conduct may also bring private damages claims and Korea operates a leniency programme under which cartel participants who co-operate may receive reduced penalties. Accordingly, Korea maintains a robust competition law regime prohibiting cartels, abuse of dominance and unfair trade practices, with both domestic and extra -
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