SOUTH KOREA Law and Practice Contributed by: John H Choi, Han Soon Choi, Changhun Lee and Seungjun Woo, Shin & Kim
Interest Interest and damages for delay are distinguished from one another by law, and while compensation does not accrue interest, damages for delay do. The court views that in the case of liability for damages arising from tort, in principle, the damages for delay accrue from the time the liability is established. In the case of a violation of the MRFTA, which is a form of tort, the damages for delay, in principle, also accrue from the time the liability is established. Accordingly, the vic - tim can claim damages for delay incurred during the period from the time the liability for damages arising from the MRFTA violation is established until the actu - al payment of all damages, including before and after the trial, unless extraordinary circumstances exist. Damages for delay are generally calculated by apply - ing an interest rate of 5% per year, which is the statu - tory interest rate under the Civil Act, to the compensa - tion for damages. However, depending on the result of a damages lawsuit, the rate of 12% per year stipulated in the Act on Special Cases Concerning Expedition of Legal Proceedings can be applied. In short, the damages for delay are calculated at a rate of 5% per year from the time the liability is incurred, and are cal - culated at an annual rate of 12% at some point after the victim files the lawsuit for damages. In a case where several people commit a violation of the MRFTA and thereby inflict damage on a victim, the violators become jointly liable for the damages to the victim. The South Korean Civil Act stipulates that in a case where multiple people inflict damage on others in a joint tort, they are jointly liable for the compensation for damages (quasi-joint debt). An MRFTA violation is a tort under the Civil Act, and when multiple peo - ple commit a tort together, it constitutes a joint tort. Accordingly, the MRFTA violators become jointly liable for a victim’s damages. As a result, the violators are obliged to compensate the victims for all the damages until the victims’ damages are compensated in full, and whether all or only some of the violators compen - sate the victims for damages, they all become exempt from the liability to pay further damages to the victim. 9. Liability and Contribution 9.1 Joint and Several Liability
In addition to receiving expert opinions or question - ing experts as witnesses to investigate expert evi - dence, courts can also adopt other measures such as requesting experts to appraise the issues of the trial, or follow the process of simultaneously seeking opinions from multiple experts. 8. Damages 8.1 Damages: Assessment, Passing On and Interest Assessment of Damages In an Antitrust Damage Lawsuit, the amount of dam - ages is calculated based on the actual amount of injury or estimated amount of injury sustained by the victim. Regarding some violations, such as collusive acts, a provision established in 2018 renders a perpetrator liable for compensation of damages for an amount not exceeding three times the damages incurred by the victims. Compensation for damages in accordance with this provision are regarded as punitive damages. When the court determines the amount of compensa - tion in accordance with the provision above, certain factors should be taken into account, including: • intent or degree of recognition of the concern that damage will arise; • the extent of damage caused by the violation; • the economic gain the perpetrator has acquired from the violation; • the fines and surcharge for the violation; • the duration and frequency of the violation; • the financial condition of the business entity; and • the extent of efforts the business entity or busi - ness entities’ organisation has made to remedy the damages. “Passing-On” Defences The perpetrator can claim and prove that the victim has not been harmed by a collusive act that violates the MRFTA by passing on the victim’s damages to consumers. When the court accepts the passing-on defence, it is also considered as a factor that limits the scope of the perpetrator’s liability.
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