공정거래법상 부당한 공동행위 규제의 합리적 개선방안

Cartel Regulation Reforms in Korean Antitrust Law

Cartels are considered one of the most powerful instruments for avoiding competition in the market. Accordingly, regulation of cartels is key to competition law anywhere, including Korea. Article 19(1) of the Korean Competition Act defines a cartel as any agreement that restricts competition, regardless of its form, among businesses, through engagement in the activities stipulated in the statute. Given that the most difficult problem in the regulation of cartels is the procurement of evidence showing the required agreement, the author here analyses the method by which such agreements are proven under the Act through both direct and indirect (circumstantial) evidence. Inference by law of the required agreement, an element peculiar to the Korean Competition Act, is also analysed. The author next takes up the issue of limitations on the justified behavior exception for activities that are in accordance with other legislation. Despite strict interpretation of the exception clauses to the Competition Act by the Korean competition authority and the courts, there remains a significant gray area where the demarcation line for illegality is not clearly drawn. Both lawyers and government authorities have yet to suggest any clear standards for a determination of illegality that is based on administrative guidance. The Korean competition authority should consider developing specific guidelines to resolve these uncertainties. The author then discusses remedies for competition violations, including both corrective measures and administrative fines. The author argues that among the various remedies, the public notice of violation order, intended to secure compliance by means of dishonor and damage to business reputation, or the reputation of other violators, contains the inherent danger of infringement upon personal dignity, credit, and privacy. Efficient investigation for effective cartel regulation depends on the ability to secure evidence of the cartel agreement. To aid in this regard, the Korean Competition Act has introduced a leniency program for voluntary reporting and cooperation (Article 22(2)). This new system is expected to contribute to the strengthening of cartel regulation in Korea.