SOUTH KOREA Law and Practice Contributed by: John H Choi, Han Soon Choi, Changhun Lee and Seungjun Woo, Shin & Kim
the MRFTA without the KFTC’s referral, such as the Criminal Act and the Framework Act on the Construc - tion Industry. In cases where the Prosecutor’s Office receives a self-report about cartels under the criminal leniency programme, it typically transfers the cases to the KFTC. However, there have been recent instances where the Prosecutor’s Office initiated its own inves - tigation and later requested a referral to the KFTC. In addition, there is a provision in the MRFTA that, even if the KFTC determines that the requirements of referral for criminal prosecution have not been met, if there is a request from the chairperson of the Board of Audit and Inspection, a minister of the Ministry of SMEs and Start-Ups (MSS), or an administrator of the Public Procurement Service (PPS) to the KFTC to make a referral, the chairperson of the KFTC must refer the matter for criminal prosecution. In recent years particularly, there have been an increasing num - ber of cases where the minister of the MSS requested criminal referrals. Thus, the provision of the MRFTA limits the KFTC’s exercise of the right to refer or not refer a case for criminal prosecution. According to the MOU between the KFTC, MSS, and PPS, the minis - ter of the MSS and the administrator of the PPS are required to request a referral to the KFTC within four months after receiving the relevant decisions from the KFTC. Regarding the Antitrust Criminal Lawsuit, the current MRFTA removed the criminal punishment provision for certain conduct where there have been no cases of criminal punishment, and such punishment would not be in accordance with the legal system. Such conduct includes that relating to M&A, some unfair trade practices (including refusal to deal, discrimina - tory treatment, exclusion of competitors, and condi - tional transactions), and resale price maintenance. As a result, these types of MRFTA violations are no longer subject to criminal litigation. Other Developments Private person’s injunction claim system The current MRFTA introduces a new system for a private person’s claim for an injunction. This system allows the victim of unfair trade practices (except for unfair support) to petition the court directly for prohibi - tion or prevention of infringing conduct without going
through the KFTC. Since the current MRFTA recognis - es a victim’s right to injunctive relief, a victim can now request the suspension or prevention of unfair trade practice without having to wait for the KFTC’s meas - ures, so that infringement can be stopped promptly or so that damages can be prevented in advance. Note that the MRFTA’s private prohibitory injunction system and provisional disposition effected to pro - tect the right to injunctive relief has only rarely been invoked to date, and thus the court’s specific judge - ment criteria for the application factors have not been clearly established. Hence, when filing a lawsuit for prohibitory injunction in the future, it is essential to take heed of the specific judgement criteria used by the court. Introduction of procedural mechanism for challenging court judgments through constitutional appeal On 27 February 2026, the Korean National Assem - bly passed amendments introducing a constitutional complaint mechanism against court judgments. Previ - ously, court judgments were expressly excluded from the scope of constitutional complaints. The amended legislation now permits constitutional complaints against final and binding court judgments, with the aim of addressing gaps in the protection of constitu - tional rights. A complaint may be brought only after ordinary rem - edies have been exhausted and within 30 days after the judgment becomes final. The availability of such constitutional complaints, however, is limited to cases where: (i) a court judgment infringes a fundamental right by departing from the established jurisprudence of the Constitutional Court; (ii) a court judgment infringes a fundamental right because it was rendered without complying with constitutionally or statutorily required due process; or (iii) a court judgment clearly violates the Constitution or applicable laws, resulting in a manifest infringement of a fundamental right. Where the Constitutional Court upholds a constitu - tional complaint, the challenged judgment is automati - cally vacated, and the case must be reheard by the relevant court in accordance with the Constitutional Court’s decision. The amendments also expressly
157 A NTITRUST LI T IGATI O N 2026
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