SOUTH KOREA Law and Practice Contributed by: John H Choi, Han Soon Choi, Changhun Lee and Seungjun Woo, Shin & Kim
Provision that eases the burden of proving damages The MRFTA provides that where it is recognised that the victim incurred damage due to the violation of the MRFTA, but it is extremely difficult to prove the precise amount of damages due to the nature of the facts, the court may recognise a reasonable amount of damages based on the gist of the overall arguments and the results of evidence examination. As such, the burden on victims to prove a specific amount of damages has been alleviated, and the court has been granted discretion in calculating the amount of damages. If the fact that damage was incurred due to tort is recognised, the court must encourage proof by vigor - ously exercising its right to seek clarification, even if a party’s argument and proof of the amount of damages is lacking, and, in some cases, determine the amount of damages based on its authority. The Supreme Court has determined that the method of calculating damage from collusion is not limited to an econometrics model, and as long as they are rea - sonable and objective, various methods may be con - sidered to calculate the amount of damages, such as: • statistical data on excess prices due to collusion; • the amount of damages found in similar cases; • the size of profits gained by a business entity from the violation; • comparing the supply price of business entities that participated in the collusion during the collu - sion period with those of the entities that did not; and • making certain adjustments to the result of one party’s calculation of the amount of damages. Antitrust Criminal Lawsuit In the case of an Antitrust Criminal Lawsuit, the pros - ecutor bears the burden of proving the facts neces - sary for maintaining the charges, such as the fact that the defendant has violated the MRFTA and should be subject to criminal punishment accordingly. With regard to the degree of proof in an Antitrust Criminal Lawsuit, the Supreme Court has determined that for guilt to be found in a criminal trial, it must be based on evidence that has the power to prove that
the charges are true beyond reasonable doubt on the part of the judge. The Supreme Court also determines that reasonable doubt does not include all doubts and distrust but rather means a rational question about the probability of facts. It is considered that conceptual suspicion or suspicion based on abstract possibility is not included in reasonable doubt. Meanwhile, although factual findings by the KFTC can serve as persuasive evidence in both antitrust dam - ages and antitrust criminal lawsuits, the court may ultimately disregard them if other evidence presented in the same case undermines their probative value. 2.5 Pass-On Defence With regard to the passing-on defence, the perpetra - tor may assert and prove that the amount of damages claimed by the victim should be limited because the victim passed the damage from the violation of the MRFTA (eg, through collusion) on to consumers. How - ever, the Supreme Court does not take the view, even if the court accepts the passing-on defence, that there is a causal relationship in which the victim’s harm is immediately reduced or in which the victim imme - diately recovers from it. Rather, its view is that the perpetrator’s liability for damages can be limited by taking into account the circumstances of passing-on the victim’s damages when determining the amount of damages. 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations Administrative Lawsuit Against the KFTC A company must file a lawsuit with the Seoul High Court against the disposition of the KFTC within 30 days from the date the company was notified of the KFTC’s disposition. If the company has filed an objec - tion to the disposition by the KFTC, the company must also file a lawsuit with the Seoul High Court within 30 days from the date of receipt of the original copy of the KFTC’s decision regarding the objection. An Admin - istrative Lawsuit Against the KFTC will be dismissed after the 30-day period.
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