SOUTH KOREA

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Content last updated: 18-01-2021

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  • Merger Control Regime
  • Merger Screening
  • Merger Filing

1. Supranationality

1.1 Membership of Supranational Organization

1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?

No.

1.1.2 Is the jurisdiction itself a supranational jurisdiction?

No.

1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?

Not applicable.

2. Nature of merger control regime

2.1 Mandatory or voluntary

2.1.1 Is filing mandatory or voluntary?

Mandatory.

2.2 Suspensory effect

2.2.1 Must completion of the transaction await clearance by the relevant authorities?

There are two types of notifications, and whether completion of the transaction must await clearance by the authorities depends on the size of the undertakings concerned:

Pre-closing notification:

Following a pre-closing notification, completion of the transaction must await clearance by the competition authority.

Pre-closing notification is required where one or more of the undertakings concerned are a “large company”, defined as an undertaking with global assets or turnover of at least KRW 2,000,000,000,000 in the last financial year, measured on group level.

Post-closing notification:

Where none of the undertakings concerned qualify as a “large company”, as defined above, completion of the transaction can take place before clearance is obtained.

In this case, the Fair Trade Commission requires that the transaction be notified no later than 30 days of completion.

1. What type of transactions are caught by the merger control regime?

1.1 Concentrations

1.1.1 Type of transactions that are caught by the merger control rules?

The following types of transactions (“business combinations”) are caught by the merger control rules:

a) acquisition of 20% or more of the total voting shares;

b) acquisition of additional shares by a shareholder already holding 20% or more of the total voting shares if by the transaction it becomes the largest shareholder;

c) participation as the largest shareholder in a new joint venture;

d) acquisition of all or a substantial part of the target’s business or fixed assets;

e) statutory merger with another company;

f) interlocking of management, i.e. a director or an employee of one company being registered as a director of another company (affiliates excluded)

1.2 Joint ventures

1.2.1 What types of joint ventures are caught by the merger control rules?

There is no separate regulation of joint ventures, and any establishment of a joint venture that qualifies as a “business combination” is subject to merger control review if the jurisdictional thresholds are triggered. Please see Section 1.1.1 and above and Section 2.3.1 below.

1.3 Definition of "control"

1.3.1 How are the concepts of "control" and "change of control" defined?

It is not a requirement that there be a change of control for a transaction to be caught by the merger control rules.

1.4 Minority shareholdings

1.4.1 Are minority and other interests less than control caught by the merger control rules?

Yes, acquisition of a minority interest is caught by the merger control rules. Please see Section 1.1.1 above.

2. Establishing jurisdiction for notification of mergers

2.3 General thresholds

2.3.1 Threshold(s) for when a concentration must be notified under the general merger control regime?

Merger filing is needed if one of the undertakings concerned had global assets or turnover of at least KRW 300,000,000,000 in the last financial year, and one of the other undertakings concerned had global assets or turnover of at least 30,000,000,000 in the last financial year.

In the case of foreign-to-foreign and Korean-to-foreign (but not foreign-to-Korean) transactions, filing is needed only if the following additional threshold is met:

  • Foreign-to-foreign mergers: The turnover in Korea of each of the at least two of the undertakings concerned was at least KRW 30,000,000,000 in the last financial year.
  • Korean-to-foreign: The turnover in Korea of the foreign target was at least KRW 30,000,000,000 in the last financial year.

2.3.2 For each threshold, can the threshold be triggered by only one undertaking having local turnover?

No. 

2.3.3 For each threshold, can the threshold be triggered without any undertaking having local turnover?

No.

2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)

2.4.1 Relevant thresholds for sector-specific or other ex ante merger control rules?

Special rules apply for transactions in the telecommunications and financial industries.

2.5 Foreign-to-foreign mergers

2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?

See Section 2.3.1 above.

3. Calculation and allocation of turnover, asset value, transaction value etc.

3.2 Relevant period for calculation of turnover

3.2.1 Which financial year(s) is relevant for the calculation of turnover?

Turnover is based on the accounts of the financial year immediately preceding the transaction.

3.3 Relevant undertakings for the calculation of turnover

3.3.1 The undertakings whose turnover is taken into account?

Turnover is calculated on a group level.

In asset deal, the seller’s affiliates are not included in the calculation of turnover.

3.5 Valuation and allocation of assets

3.5.1 The principles for valuation and allocation of assets?

Assets are calculated on a group level.

In asset deal, the seller’s affiliates are not included in the calculation of assets.

3.6 Calculation of other thresholds

3.6.1 The principles for calculation of metrics for other thresholds (e.g. transaction value, market share, share of supply etc.)?

Not applicable.

3.7 Special rules

3.7.1 Do any special rules or principles apply to the calculation, allocation etc. of turnover, assets etc. for specific undertakings (e.g. State-owned undertakings, investment funds, credit and financial institutions, insurance companies, financial holding companies, others)?

Sector specific rules apply to undertakings in the telecommunications and financial sectors.

3.7.2 Does any exemptions apply?

No exemptions apply.

1. Practical information

1.2 Deadlines for filing

1.2.3 What are the sanctions for not filing a notifiable transaction?

Failure to notify a fileable transaction is sanctionable by an administrative fine of up to KRW 100,000,000, depending on the size of the assets and turnover of the undertaking failing to notify.

Detailed guidelines on the calculation of fines are available at the Korean Fair Trade Commission’s website:

https://www.ftc.go.kr/eng/cop/bbs/selectBoardList.do?key=2857&bbsId=BBSMSTR_000000003634&bbsTyCode=BBST11

This content was delivered
and last updated 18-01-2021 by

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