SOUTH KOREA Law and Practice Contributed by: John H Choi, Han Soon Choi, Changhun Lee and Seungjun Woo, Shin & Kim
introduce a preliminary injunction mechanism, allow - ing the Constitutional Court to suspend the effect of the challenged exercise of public authority pending its final decision. The first case referred to the Constitutional Court’s full bench for a merits review following the introduction of this new procedural mechanism concerns a Supreme Court judgment upholding a KFTC’s decision. In that case, the KFTC imposed remedial orders and admin - istrative surcharges on Green Cross Corporation, a Korean pharmaceutical company, after finding that it had engaged in bid rigging in vaccine procurement tenders. While the Supreme Court ultimately upheld the legality of the KFTC’s decision, the parallel criminal proceedings reached the opposite conclusion, finding that the alleged bid-rigging conduct did not restrict competition and acquitting Green Cross of the crimi - nal charges. Green Cross subsequently filed a con - stitutional complaint, arguing that the Supreme Court judgment affirming the KFTC’s decision violated its constitutional rights and seeking to have that judg - ment reversed. The introduction of this mechanism allows parties to challenge even final court judgments on constitutional grounds. As a result, future litigation is expected to involve not only disputes over facts and statutory interpretation, but also increasingly sophisticated constitutional arguments, particularly those concern - ing the protection of fundamental rights. 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.
• There is a causal relationship between the perpe - trator’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 perpe - trator’s violation of the MRFTA and the damage to the victim. • 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 Antitrust Damages Lawsuits and Antitrust Crimi - nal Lawsuits go through a three-tiered court system (district courts, high courts and the Supreme Court), as is generally the case. The introduction of a proce - dural mechanism for seeking constitutional review of court judgments, discussed in 1.2 Recent Develop- ments , potentially adds another layer to the litigation process.
158 A NTITRUST LI T IGATI O N 2026
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