獨占規制法上 合意推定 관련 審(判)決例 硏究

The Analysis of Cases on the Inference of Agreement in Antitrust Law

&nbsp;&nbsp;Cartels or improper concerted acts are the most threatening acts in market economy and are often referred to cancers of market economy. Competition authorities all over the world give priorities to the regulation of cartels in enforcement of antitrust laws. Improper concerted acts in Korea Monopoly Regulation and Fair Trade Act("MRFTA") requires three elements; plurality, agreement and restriction of competition. Among these elements, the most important issue is that how the presence of agreement can be proved.<BR>&nbsp;&nbsp;It is not easy to find the directive evidence of agreement such as contracts or witnesses. In many cases investigators seek to prove agreement through indirect evidence or circumstantial evidences. This means factual inference of agreement. Circumstantial evidences do not need to exclude all possibility that the entrepreneur acted independently. The test means only that there must be some evidence which would support a finding of agreement.<BR>&nbsp;&nbsp;MRFTA has the distinctive article, 19(5), related to the inference of agreement which other countries do not have. According to the article, "Where two or more enterprisers are committing any acts listed in the subparagraphs of paragraph (1) that practically restrict competition in a particular business area, they shall be presumed to have committed an unfair collaborative act despite the absence of an explicit agreement to engage in such act." There have been controversies over interpretation of this article. In 2002, Korea Supreme Court ruled that this article should be construed as the legal presumption clause of agreement. The Court clarified circumstantial evidences are not required for the legal presumption of agreement.<BR>&nbsp;&nbsp;However, the legal presumption tends to be too harsh to enterprisers. The Supreme Court has reversed legal presumptions in acts by independent business judgment, acts by price leadership or administrative guidance without meeting of minds. Some administrative guidances are indispensable in modern administration and have been effectively used in the process of economic development of Korea. The Supreme Court reversed the presumption of agreement not because of the presence of administrative guidance but because of the absence of agreement.<BR>&nbsp;&nbsp;I think that the legal presumption clause needs to be amended in a way that the meaning of the clause can be more clarified.