SOUTH KOREA Law and Practice Contributed by: Heejun Choi, Kyoung-Ho Kim, Sungsok Yang, Eunjee Kim and Kwang-Chun Park, Dentons Lee
territorial application based on effects in the Korean market. 6.4 Abuse of Dominant Position Korea regulates both unilateral conduct by dominant firms and conduct based on economic dependence under the Monopoly Regulation and Fair Trade Act (“MRFTA”). A company may be regarded as dominant where it can determine, maintain or change prices, output, qual - ity or other trading conditions in the relevant market. Market dominance is presumed where a company holds at least 50% market share or where three or fewer companies together hold at least 75%, subject to statutory exceptions. A dominant company may not abuse its position by: • unfairly determining or maintaining prices; • unjustifiably restricting output or supply; • interfering with competitors’ business activities; • impeding market entry; • excluding competitors through unfair practices; or • otherwise materially harming consumer interests. The assessment focuses on whether the conduct has or is likely to have, an anti-competitive effect in the relevant market, rather than merely harming an indi - vidual trading partner. The MRFTA also regulates unfair trade practices, including abuse of a superior bargaining position. This regime applies even where a company is not domi - nant, particularly where one party is economically dependent on another. Prohibited conduct includes: • forcing unwanted purchases; • compelling economic benefits; • imposing disadvantageous trading terms; • interfering with management; or • otherwise placing the counterparty at an unfair disadvantage.
Sector-specific legislation on subcontracting, fran - chising, large-scale retail businesses and agency or distribution relationships supplements the MRFTA. The MRFTA applies on an effects basis. Conduct occurring outside Korea may therefore be subject to Korean competition law where it has a sufficient effect on the Korean market, although international comity and conflicts with mandatory foreign law may also be relevant. Accordingly, Korea regulates unilateral conduct through both the abuse of dominance and superior bargaining position rules, which may also apply to for - eign conduct that affects competition in the Korean market. Under the Korean Patent Act, an invention is a highly advanced creation of technical ideas using the laws of nature. Patentable inventions include products, meth - ods and methods of producing products. A patent grants the exclusive right to commercially exploit the invention in Korea. The scope of protection is determined primarily by the claims, interpreted in light of the specification and drawings, without extending or restricting the claim language. 7. Intellectual Property 7.1 Patents A patent generally lasts 20 years from the filing date and takes effect upon registration. In certain regulated sectors, including pharmaceuticals and agrochemi - cals, the term may be extended to compensate for regulatory approval delays. Patent registration is administered by the Korean Intellectual Property Office (“KIPO”). Applications are examined for formal and substantive requirements, including: • industrial applicability; • novelty; • inventive step; and • sufficiency of disclosure.
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