국가안보위협형 외국인 M&A의 국제적 규제동향과 입법과제 (International Regulation of the Cross-Border M&As threatening National Security and Legislative Recommendations)

서지정보

· 발행기관 : 한국상사법학회
· 수록지 정보 : 상사법연구 / 26권 / 4호 / 51 ~ 86페이지
· 저자명 : 송종준

초록

Recently Cross-border M&As have been increasing and welcomed between OECD member countries, but strong political pressure has been given to the M&A for acquiring the infrastructure industries concerned with national security in lots of member countries. Such pressures have been significantly heightened while M&As by non-member country for the member country infrastructures are rapidly increasing. So many countries are enhancing the regulation of the Foreign Direct Investment for protecting national security.
France and Germany have enlarged the scope of enterprise lists prohibiting Foreign Direct Investment. United States Congress began to consider the needs to make changes to current Exon-Florio in order to improve the statute's effectiveness for protecting national security. Canada Government introduced new national security provision in the foreign investment law. Russia is in process of introducing explicit provision for protecting national security in executing the foreign direct investment policies. China Government already changed the law to review foreign M&As for the essential industries giving significant affects to national economic security.
Meanwhile, Korean government has been lessening or deregulating the formerly strict regulations of foreigner's M&A since the 1997 financial crisis. Nowadays lots of big listed companies, some of which are among national infrastructure industries, are controlled by Foreigners. We have concerns that such controls could cause direct or indirect significant threats to our national security interests and strategic interests in the future.
This paper suggests some legislative recommendations for protecting essential national security on the base of U.S. Exon-Florio Act. Fist, the name of the current Foreign Investment Promotion Act should be changed to the Foreign Investment Act. Second, “before and after review” process should be introduced against foreign M&A threatening our essential national security. Third, the review should be not restrictively but comprehensively given to all of the Foreign M&As acquiring the infrastructure industries relating to essential national security.

영어초록

Recently Cross-border M&As have been increasing and welcomed between OECD member countries, but strong political pressure has been given to the M&A for acquiring the infrastructure industries concerned with national security in lots of member countries. Such pressures have been significantly heightened while M&As by non-member country for the member country infrastructures are rapidly increasing. So many countries are enhancing the regulation of the Foreign Direct Investment for protecting national security.
France and Germany have enlarged the scope of enterprise lists prohibiting Foreign Direct Investment. United States Congress began to consider the needs to make changes to current Exon-Florio in order to improve the statute's effectiveness for protecting national security. Canada Government introduced new national security provision in the foreign investment law. Russia is in process of introducing explicit provision for protecting national security in executing the foreign direct investment policies. China Government already changed the law to review foreign M&As for the essential industries giving significant affects to national economic security.
Meanwhile, Korean government has been lessening or deregulating the formerly strict regulations of foreigner's M&A since the 1997 financial crisis. Nowadays lots of big listed companies, some of which are among national infrastructure industries, are controlled by Foreigners. We have concerns that such controls could cause direct or indirect significant threats to our national security interests and strategic interests in the future.
This paper suggests some legislative recommendations for protecting essential national security on the base of U.S. Exon-Florio Act. Fist, the name of the current Foreign Investment Promotion Act should be changed to the Foreign Investment Act. Second, “before and after review” process should be introduced against foreign M&A threatening our essential national security. Third, the review should be not restrictively but comprehensively given to all of the Foreign M&As acquiring the infrastructure industries relating to essential national security.

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