SOUTH KOREA Law and Practice Contributed by: John H Choi, Han Soon Choi, Changhun Lee and Seungjun Woo, Shin & Kim
8. Damages 8.1 Damages: Assessment, Passing On and Interest Assessment of Damages In an Antitrust Damages 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 is 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. 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. As a result, the violators are obliged to compensate the victims for all the damages until the victims’ damages are compensated in full. Participants in a cartel may be subject to treble dam - ages (ie, three times the amount of actual damages). However, an exception applies to a leniency appli - cant or a party that has co-operated with the KFTC’s investigation or adjudicative proceedings, such as by providing new evidence of unlawful coordinated con - duct. Such a party would be jointly liable only up to the amount of the victim’s actual damages and would not be subject to treble damages. 9.2 Contribution Where a victim prevails in a damages lawsuit against multiple violators, the violator who has compensated the damages suffered by the victim can file a civil law - suit against the other violators, claiming compensa - tion for the portion of the damages paid beyond their liability. In this case, with respect to the criteria for determining whether the violator has paid compensa - tion beyond their liability to the victim, the Supreme Court suggests using “the degree of wrongdoing of the joint tortfeasor in the joint illegal acts” as a cri - terion. 9. Liability and Contribution 9.1 Joint and Several Liability
165 A NTITRUST LI T IGATI O N 2026
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