SOUTH KOREA Law and Practice Contributed by: John H Choi, Han Soon Choi, Changhun Lee and Seungjun Woo, Shin & Kim
KRW20 billion. Google filed an administrative lawsuit seeking to revoke the KFTC’s decision. In January 2024, the Seoul High Court ruled in favour of the KFTC. The court first found that Google holds a dominant position in the market for licensable smart mobile operating systems and maintains a superior bargaining position vis-à-vis mobile device manu - facturers. The court further held that Google had lev - eraged its dominance in the OS market to compel manufacturers to accept anti-fragmentation obliga - tions, thereby hindering the release of devices using Android fork OS and restricting manufacturers from transacting with Google’s rivals – ultimately resulting in anti-competitive effects. Google has appealed the decision, and the case is currently pending before the Supreme Court. This ruling is important in that the court adopted a structured approach in defining the relevant market, distinguishing between licensable Android OS and non-licensable iOS. The decision also reaffirmed that the KFTC may sanction abusive conduct involving lev - eraged market dominance – even where the market in which dominance is held differs from the market where competitive harm occurs. 1.2 Recent Developments Recent Development in Antitrust Litigation Recently, the MRFTA was wholly amended, which took effect on 30 December 2021. The wholly amended MRFTA presently in effect (the current MRFTA) con - tains several changes and brought many changes to the three types of antitrust litigation outlined below. Administrative lawsuit against the KFTC In relation to the Administrative Lawsuit Against the KFTC, the area often at issue in South Korea is the administrative lawsuit regarding collusion. Under the MRFTA, collusion requires an “agreement”, and the previous version of the MRFTA did not include a spe - cific provision regarding information exchange. The current MRFTA includes information exchange that substantially restricts competition as a type of col - lusion, and when external conformity of actions, such as joint increase in price and information exchange, is found, an “agreement” is presumed by law.
Due to the change above, the KFTC’s burden of proof will be significantly eased. Under the current MRFTA, if an agreement is presumed on the basis of external conformity of actions, of increased prices and infor - mation exchange, the KFTC must only prove anti- competitiveness, and the business entity must prove there is no agreement. This provision that presumes collusion when there is an exchange of information applies only to conduct that terminated after the date of the enforcement of the current MRFTA (30 Decem - ber 2021). Antitrust damage lawsuit Recently, in cases where a violation of the MRFTA has been found, damages lawsuits have been brought more actively. In an Antitrust Damage Lawsuit, it was difficult for the victims to prove the amount of damages incurred due to the violation of the MRFTA. The current MRFTA introduces a new system of court orders to submit materials. Under this court order system, pursuant to a party’s request in an Antitrust Damage Lawsuit, the perpetrator can be ordered to submit materials nec - essary to prove damage or calculate the amount of damages. This is expected to alleviate some of the burden of proving damages. Meanwhile, there were recent cases where sharehold - ers of companies that participated in cartel conduct filed shareholder derivative lawsuits and sought com - pensation from the CEO for damages resulting from their breach of duty of oversight. The Supreme Court ruled, in a case in which a sales employee engaged in cartel conduct, that the CEO was liable for damages equivalent to penalty surcharges paid out by the com - pany for the cartel conduct. The court found that the CEO breached a duty of oversight based on the fact that the collusion took place for an extended period of time without any form of restraint and based on the lack of an adequate internal control system to prevent the breach of law (and the lack of efforts to establish such system). Antitrust criminal lawsuit Criminal litigation was previously conducted pursu - ant to the KFTC’s referral of the violator for criminal prosecution after finding a violation of the MRFTA. It
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