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- 저자 : 양명조 ( Meong Cho Yang ) (검색결과 17 건)
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양명조 ( Meong Cho Yang ) 이화여자대학교 법학연구소 2012 法學論集 Vol.17 No.2
In this article the author explores and comments on the revised Monopoly Regulation and Fair Trade Act of 2012(Korean antitrust law, “MRFT Act”). Significant provisions of the new MRFT Act are as follows: (1) The consent decision will be implemented by the Korea Fair Trade Commission (“KFTC”) where the respondent agrees to correct the alleged illegal conduct in lieu of the formal KFTC procedure. (2) The KFTC may impose an administrative fine against the newly established company for the unlawful activities done by the divided former company. Yet the similar rule has to be applied for the transfer of business cases. (3) The period of statute of limitations has been extended to 7 years from the previous 5 years. Where the KFTC investigation is instituted, the previous five- year-period applies. (4) Upon the post-notification from the companies involved in a merger regulated by the MRFT Act, the KFTC should decide whether to challenge the merger in question within 30 days(exceptionally 90 more days). (5) The obstruction of KFTC investigation has been added to the list of serious antitrust crimes; imprisonment for not more than 3 years or a fine up to two hundred million won. However, resort to penal provisions should be limited against the gross violations; a fine for negligence would be more appropriate in ordinary obstruction of investigation cases.
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2011년 개정 상법상 주식회사 이사의 자기거래에 있어서의 공정성 요건
양명조 ( Meong Cho Yang ),문화경 ( Hwa Kyung Moon ) 법조협회 2011 法曹 Vol.60 No.9
The 2011 Korean Commercial Code Draft adopts a fairness test providing that a transaction is valid when both the director obtains Board of Directors` approval and the transaction is fair to the corporation, following an ideal that involves the allocation of power and the imposition of responsibility to reconcile any conflicts between the parties in a transaction. While it is not an adequate attempt to precisely define the concept of fairness, the vast majority of courts in the U.S., have stressed fairness both in substance and process. This article relates the concept of fairness of director self-dealing transactions under the U.S. corporate law and Korean Commercial Code. It also offers a comprehensive framework for understanding the variety of rules addressing self-dealing and suggests the most efficient solution suitable to all, although there`s no possible optimal one. In the U.S., when courts are faced with an allegation that a manager has engaged in some behavior that would arguably violate the duty of loyalty in a self-dealing transaction, the court will measure the ``fairness`` of the transaction on both substantive and procedural grounds. Proof of fairness generally entails the same inquiry into process and substance, with the burden of proof on the defendants, as is the case with conflict-of-interest transactions generally. Substantive fairness focuses on a comparison of the fair market value of the transaction to the price the corporation actually paid, as well as the corporation`s need for and ability to consummate the transaction. Procedural fairness whether through approval by disinterested directors or disinterested shareholders requires full disclosure of the existence of the interested director`s conflict and other material information concerning the substance of the transaction. The Korean court should look both at the substance of the transaction to ensure that the firm received fair value, and at the process by which the transaction was approved, to ensure that the firm had the sufficient information needed to decide whether it should go forward with the information despite the putative conflict of interest. Moreover, the third party interest should be weighed carefully when the court invalidates a self-dealing transaction due to the lack of disinterested board approval.
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독점규제법위반 공동행위 사건에 있어서의 부당성 판단과 행위일치의 쟁점: 2009년 대법원 판결 평석
양명조 ( Meong Cho Yang ) 한국경쟁법학회 2010 競爭法硏究 Vol.21 No.-
In this article, the author reviews Korean Supreme Court decisions of 2009 dealing with cartel cases under the Korean antitrust law, the Monopoly Regulation and Fair Trade Act(MRFT Act). As an introduction, the author presents a rather fundamental question concerning the core of cartels`` badness. Chapter Ⅰ indicates several issues raised in the Court holdings: (1) Is it appropriate to look into various motives of the cartel in question such as social or political considerations besides its competitive effect(the rule of reason test) in deciding its unreasonableness. (2) May a cartel be judged as reasonable when it followed the administrative guidance where no specific statutory provision empowering such a guidance is prescribed. (3) Is it necessary to require concurrence of similar acts among participants in finding an illegal cartel. (4) Is it permissible to consider the optimal level of the price in finding the illegality of a cartel. Chapter Ⅱ analyses 12 Container Carriers v. Korea Fair Trade Commission (KFTC). In this case, the respondents made an agreement about their freight rates and applied the agreed rates to shipping companies. The KFTC decided that the agreement among respondents came under the illegal cartel prohibited by the MRFT Act article 19 and rendered a cease and desist order. The respondents brought an action against the KFTC to quash its decision. The Supreme Court reversed the high court`s ruling which supported the KFTC decision of this case. The author raised a question about the Supreme Court`s suggestion that even an anticompetitive cartel may not be unreasonable when it is motivated to solve the social disturbance like a transportation blockade due to the truckers` strike. He also criticizes the Court`s lenient stance tending to justify the unreasonable cartel caused by the administrative guidance without indicating its statutory grounds. Chapter Ⅲ examines Apartment Buildings`` Price Cartel Cases. Korean court decisions about the presumptive cartels have long required the proof of their anticompetitiveness and the unity of individual participants`` acts. Among several similar cases, the difference of the average unit prices charged by the builders of apartments in Jugjeon District, Yong-in City was less than 10 million won(8,040 U.S. dollars). On the other hand, the difference of the average unit prices of apartments sold in Dongbaeg District, Yong-in City ranged from 10 million won to 30 million won(8,040 U.S. dollars to 25,200 U.S. dollars). While the Supreme Court supported the KFTC`s finding of an illegal cartel among Jugjeon builders, the Court did not accept the presumption of agreement among Dongbaeg builders, denying the concurrence of similar acts. The author raises an issue concerning the Court`s position to excessively emphasize the unity of participants` acts in presuming an tacit cartel. He points out that it is not necessary to require more strict similarity of participants` acts in a presumption case than in a proved agreement case.
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양명조(Yang Meong cho) 성균관대학교 비교법연구소 2007 성균관법학 Vol.19 No.2
In this article the author overviews 2007 revisions of the Korean Antitrust Law. The major changes to be noted are as follows: ① The firms whose asset or yearly sales volume is less than 4 billion won(4.25 million U.S. dollars) are exempt from the regulation against the misuse of market dominant position. ② The type of unfair mergers and acquisitions will not be challenged under the Korean Antitrust Law. ③ A bid rigging is itemized as one of prohibited cartel activities ④ Presumption of collusion clause requires circumstantial evidence for finding an undue collaboration. ⑤ Investment ceiling for larger business groups will be raised to 10 trillion won(10.6 billion U.S. dollars). ⑥ The Fair Trade Dispute Resolution Panel will be launched according to the new law.
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