SOUTH KOREA Law and Practice Contributed by: John H Choi, Han Soon Choi, Changhun Lee and Seungjun Woo, Shin & Kim
no clear error. Accordingly, the victim usually proves the amount of damages from collusion by making a request to the court for such an appraisal and review - ing the result. However, a victim who has difficulty bearing the cost of the appraisal or who wants to end the lawsuit quickly may instead prove the amount of damages without undergoing the appraisal method described, such as by using the amount of damages calculated in similar cases. In this situation, the court alleviates the burden on the victim of proving the amount of damages by recognising the amount, based on the provision that eases the burden of proving damages under the MRFTA. Provision that eases the burden of proving damages The MRFTA provides that where it is recognised that the victim incurred damage due to the violation of the MRFTA, but it is extremely difficult to prove the precise amount of damages due to the nature of the facts, the court may recognise a reasonable amount of damages based on the gist of the overall arguments and the results of evidence examination. As a result, the bur - den on victims to prove a specific amount of damages has been alleviated, and the court has been granted discretion in calculating the amount of damages. If the fact that damage was incurred due to tort is recognised, the court must encourage proof by vigor - ously exercising its right to seek clarification, even if a party’s argument and proof of the amount of damages is lacking, and, in some cases, determine the amount of damages based on its authority. The Supreme Court has determined that the method of calculating damage from collusion is not limited to an econometrics model, and as long as they are rea - sonable and objective, various methods may be con - sidered to calculate the amount of damages, such as: • statistical data on excess prices due to collusion; • the amount of damages found in similar cases; • the size of profits gained by a business entity from the violation; • comparing the supply price of business entities that participated in the collusion during the collu -
sion period with those of the entities that did not; and • making certain adjustments to the result of one party’s calculation of the amount of damages. Antitrust Criminal Lawsuit In the case of an Antitrust Criminal Lawsuit, the pros - ecutor bears the burden of proving the facts neces - sary for maintaining the charges, such as the fact that the defendant has violated the MRFTA and should be subject to criminal punishment accordingly. With regard to the degree of proof in an Antitrust Criminal Lawsuit, the Supreme Court has determined that for guilt to be found in a criminal trial, it must be based on evidence that has the power to prove that the charges are true beyond reasonable doubt on the part of the judge. The Supreme Court also determines that reasonable doubt does not include all doubts and distrust but rather means a rational question about the probability of facts. It is considered that conceptual suspicion or suspicion based on abstract possibility is not included in reasonable doubt. Meanwhile, although factual findings by the KFTC can serve as persuasive evidence in antitrust criminal law - suits, the court may ultimately disregard them if other evidence presented in the same case undermines their probative value. 2.5 Pass-On Defence Although Korean courts have expressly rejected the pass-on defence as a formal legal defence, they have, in practice, achieved a similar result by taking pass- on considerations into account when determining the scope of liability. For example, in the flour cartel litiga - tion, the Court held that a downstream price increase does not ordinarily establish that the purchaser’s loss was reduced, absent special circumstances directly linking the overcharge to the downstream price, such as an automatic pricing formula and no change in sales volume. However, based on the principle of equity, the court reduced the amount of damages pay - able by the defendants to reflect the plaintiffs’ pass-on of the overcharge. The burden of proving both the existence and the amount of any pass-on rests with the defendants.
160 A NTITRUST LI T IGATI O N 2026
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