SOUTH KOREA Law and Practice Contributed by: John H Choi, Han Soon Choi, Changhun Lee and Seungjun Woo, Shin & Kim
2. Private Antitrust Claims: Basis and Procedure 2.1 Statutory Basis The legal basis for claiming damages due to violation of the MRFTA is provided in the law. The representa - tive laws are the Civil Act and the MRFTA. Claiming Under the Civil Act The Civil Act has a provision on claiming damages for general torts, and the requirements for claiming dam - ages for tort under the Civil Act are as follows: • there is intent or negligence in the perpetrator’s conduct; • there is damage to the victim; • the perpetrator’s conduct is unlawful; and • there is a causal relationship between the perpetra - tor’s conduct and the damage to the victim. Violation of competition law, including violation of the MRFTA, is generally considered a tort, so a victim of the tort can claim damages based on the Civil Act. However, in order for the tort to be established, all four of the requirements above must be met, and the victim must prove the facts meeting the requirements. Claiming Under the MRFTA Meanwhile, the MRFTA has a provision for claiming damages caused by violations of the MRFTA, sepa - rate from the Civil Act. The requirements for claiming damages under the MRFTA are as follows: • the perpetrator (business entity or business enti - ties’ organisation under the MRFTA) violates a provision of the MRFTA; • there is damage to the victim; • there is a causal relationship between the perpetra - tor’s violation of the MRFTA and the damage to the victim; and • there is intent or negligence in the perpetrator’s conduct. There is no significant difference between the require - ments under the MRFTA and those under the Civil Act. However, in contrast to the need for the victim to prove the intent or negligence of the perpetrator in the case of a claim for damages under the Civil Act, the
MRFTA provides that the perpetrator needs to prove that there is no intent or negligence. 2.2 Courts The Administrative Lawsuit Against the KFTC falls under the exclusive jurisdiction of the Seoul High Court, as prescribed by the MRFTA. Unlike ordinary litigation, which proceeds through a three-tiered court system of district courts, high courts and the Supreme Court, a case of an Administrative Lawsuit Against the KFTC goes through a two-tiered court system of the Seoul High Court and the Supreme Court. Among the several judicial panels within the Seoul High Court, there are some dedicated to the Admin - istrative Lawsuit Against the KFTC. The Administrative Lawsuit Against the KFTC is assigned to one of these judicial panels. Even if the case is reallocated, it will be reassigned to one of the remaining judicial panels dedicated to the Administrative Lawsuit Against the KFTC. Since the Seoul High Court is prescribed as having exclusive jurisdiction over the Administrative Lawsuit Against the KFTC, an Administrative Lawsuit Against the KFTC received by the Seoul High Court will not be transferred. However, since the Seoul High Court does not have exclusive jurisdiction over the Antitrust Damage Law - suits and Antitrust Criminal Lawsuits, these go through a three-tiered court system, as is generally the case. 2.3 Impact of Competition Authorities The national competition authority in South Korea is the KFTC. The KFTC’s decisions are not binding on the court, which can review the validity of the KFTC’s decisions in full, find different facts from those found by the KFTC, and make different legal determinations. In the case of an Antitrust Damage Lawsuit, the vic - tim proceeds by filing a lawsuit against the perpetra - tor, and there is no statutory basis for the KFTC to impose damages measures directly on the perpetra - tor or intervene in the damages process carried out by the victim. The MRFTA provides that the court in charge of an Antitrust Damage Lawsuit may make a request to the KFTC to send records related to the violation of the MRFTA. While factual findings by for - eign NCAs can serve as persuasive evidence in civil
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