SOUTH KOREA Law and Practice Contributed by: John H Choi, Han Soon Choi, Changhun Lee and Seungjun Woo, Shin & Kim
2.3 Impact of Competition Authorities The national competition authority in South Korea is the KFTC. The KFTC’s decisions are not binding on the court, which can review the validity of the KFTC’s decisions in full, find different facts from those found by the KFTC, and make different legal determinations. In the case of an Antitrust Damages Lawsuit, the vic - tim proceeds by filing a lawsuit against the perpetra - tor, and there is no statutory basis for the KFTC to impose damages measures directly on the perpetra - tor or intervene in the damages process carried out by the victim. The MRFTA provides that the court in charge of an Antitrust Damages Lawsuit may make a request to the KFTC to send records related to the violation of the MRFTA. While factual findings by for - eign NCAs can serve as persuasive evidence in civil antitrust litigation, the court may ultimately disregard them if other evidence presented in the same case undermines their probative value. 2.4 Proof Administrative Lawsuit Against the KFTC In the case of an Administrative Lawsuit Against the KFTC, the KFTC bears the burden of claiming and proving that there has been a violation of the MRFTA and that the measures imposed by the KFTC are appropriate. The party subject to the measures bears the burden of claiming and proving that there is jus - tification for the violation of the MRFTA. The court determines whether the KFTC has deviated from or abused its discretion by reviewing whether there are errors in the findings of fact that were the bases for the measures and whether the general principles of administrative laws, such as the principles of propor - tionality and impartiality, have been followed. For example, in the case of the KFTC’s surcharge imposition, the court considers that the KFTC has dis - cretion to determine whether to impose a surcharge and the amount of that surcharge. The court believes that the “Notice on Standard for Imposing Surcharge” (“Surcharge Notice”) is only an internal standard within the KFTC and the KFTC’s measures are not immedi - ately unlawful simply because the Surcharge Notice was not followed. However, if the KFTC has repeat - edly imposed measures pursuant to the Surcharge Notice so that it has become an administrative prac -
tice, then the court has determined that measures contrary to such administrative practice are unlawful. The fact that such administrative practice has been established must also be claimed and proved by the party subject to the measures. As to the applicable standard of proof, the Supreme Court has held that, although proof of facts in an administrative lawsuit against the KFTC does not require the degree of certainty demanded by the natural sciences or the absence of any conceivable doubt, it does require a high degree of probability that the relevant fact existed, based on a comprehensive assessment of all the evidence in accordance with the rules of experience, unless there are special circum - stances, such that an ordinary person would have no reasonable doubt as to the existence of that fact. Antitrust Damages Lawsuit In the case of an Antitrust Damages Lawsuit, if the victim has filed a damages lawsuit based on the pro - visions of the MRFTA, the victim bears the burden of asserting and proving that they incurred damage and the extent of the damage (amount of damages). The perpetrator bears the burden of asserting and prov - ing that there was no intent or negligence regarding the violation of the MRFTA and that there are circum - stances under which the victim’s claimed amount of damages should be limited. That is, a perpetrator whose conduct violates the MRFTA is presumed to have acted intentionally or negligently. On the other hand, if the victim has filed a damages lawsuit based on a provision of the Civil Act, the victim must prove the perpetrator’s intent or negligence. The victim must also prove the specific amount of damages. The most problematic issue in this regard is calculating the amount of damages caused by col - lusion. The court deducts the estimated price that the victim would have borne had there been no collu - sion (hypothetical competitive price) from the actual price where there was collusion. In order to calculate the hypothetical competitive price, special appraisal methods such as an econometrics analysis are used. Appraisal according to the econometrics analysis method is usually carried out by academic experts. The court generally accepts the amount of damages calculated from the appraisal result as long as there is
159 A NTITRUST LI T IGATI O N 2026
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