SOUTH KOREA Law and Practice Contributed by: John H Choi, Han Soon Choi, Changhun Lee and Seungjun Woo, Shin & Kim
4.3 Direct/Indirect Purchasers Both direct purchasers who purchased a product directly from the business entity that colluded or oth - erwise violated the MRFTA, and indirect purchasers who purchased the product from that direct purchaser or a product using such products as raw materials, may, in principle, file a damages lawsuit against the business entity. Although it is not specified in the Civil Act and the MRFTA whether an indirect purchaser may file a dam - ages lawsuit against the business entity, the Supreme Court generally takes the view that violation of the MRFTA constitutes a tort under the Civil Act so that pursuant to general legal principles of tort under the Civil Act, if there is a substantial causal relationship between the business entity’s violation of the MRFTA and an indirect purchaser’s damages, the indirect pur - chaser may also claim damages. 4.4 Class Certification There is no system in South Korea that allows class/ collective action in antitrust litigation. See 4.1 Statu - tory Basis . 5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law Jurisdiction In the case of an Administrative Lawsuit Against the KFTC, the MRFTA specially provides that the Seoul High Court has exclusive jurisdiction of the first instance, and accordingly, an Administrative Lawsuit Against the KFTC goes through a two-tiered court sys - tem of the Seoul High Court and the Supreme Court. An Antitrust Damages Lawsuit is a civil lawsuit, and jurisdiction is determined according to the provisions of the Civil Procedure Act. Under the Civil Procedure Act, the court in charge of the following has jurisdic - tion over the case: • if the defendant is a person, the place of domicile (if the person has no domicile in South Korea or the person’s domicile is unknown, then the person’s place of residence, and if the place of residence
is unfixed or unknown, then the place of the last domicile); and • if the defendant is a corporation or other associa - tion or foundation, the place of principal office or place of business (if there is no such office or place of business, then the domicile of the main person in charge). If jurisdiction is recognised for multiple courts in dif - ferent regions for a single case, a plaintiff may file a lawsuit with any of them. Furthermore, even if a plain - tiff files a lawsuit in a court that does not have juris - diction, jurisdiction is recognised if there is an agree - ment between the plaintiff and the defendant, or if the defendant responds to the pleading without an objection. In the case of an Antitrust Criminal Lawsuit, jurisdic - tion is determined according to the provisions of the Criminal Procedure Act. The Criminal Procedure Act basically provides that the court with jurisdiction is the court in charge in the place where the offence took place, the place of the defendant’s domicile, the place of the defendant’s residence, or the defendant’s In an Administrative Lawsuit Against the KFTC, since the issue is whether the KFTC’s measures based on the MRFTA are lawful, the MRFTA applies in terms of substance. In terms of procedure, the MRFTA, the Administrative Litigation Act, and the Civil Procedure Act apply, among other pieces of legislation. present location. Applicable Law In an Antitrust Damage Lawsuit, in terms of substance, the Civil Act and the MRFTA apply, and the victim may choose the law that is the basis for the claim in filing the lawsuit. In terms of procedure, the Civil Procedure Act applies. In an Antitrust Criminal Lawsuit, various laws such as the Criminal Act and MRFTA can be applied, and procedurally, the Criminal Procedure Act is applicable.
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