SOUTH KOREA Law and Practice Contributed by: John H. Choi, Changhun Lee, Hyunah Kim and Jae-Hyuk Choi, Shin & Kim
Shin & Kim 23F, D-Tower (D2) 17 Jongno 3-gil Jongno-gu Seoul 03155 Korea Tel: +82 2 316 4232 Fax: +82 2 756 6226
Email: jhchoi@shinkim.com Web: www.shinkim.com/eng/
1. Cartels Law and Regulation 1.1 Legal Bases In Korea, the statutory basis for challenging car - tel behaviour/effects is the Monopoly Regulation and Fair Trade Act (MRFTA). Although there are other statutes that regulate cartels, including the Criminal Act and the Framework Act on the Construction Industry, most cartels are regulated under the MRFTA, through Article 40 to Article 44, and the Enforcement Decree of the MRFTA details or supplements the MRFTA provisions. In addition, as the enforcement authority of the MRFTA, the Korea Fair Trade Commission (KFTC) provides the following guidelines for car - tels: • Guidelines for Filing Applications for the Approval of Cartels and Competition-Restric - tive Practices; • Guidelines for Cartel Review; • Guidelines on Examination of Cartels in Bid - ding; • KFTC Notice on the Operations of the Leni - ency Guidelines for Voluntary Disclosure of Unfair Collusive Acts; • Guidelines for Examination of Cartels Involv - ing Administrative Guidance; and
• Guidelines for Review of Cartels Involving Information Exchange Between Business Entities. On 10 December 2020, the prosecutors’ office introduced “Guidelines for the Reduction of Penalty in Cartel Cases and Investigation Pro- cedures” , formally implementing a criminal leni - ency programme for cartel cases. In addition, the fully amended MRFTA, effective as of 30 December 2021 (the “Amendment” ), contains a number of changes regarding cartels. 1.2 Regulatory/Enforcement Agencies and Penalties The KFTC may impose remedial orders and a surcharge on a company that has taken part in a cartel in violation of the MRFTA, and may file a referral to the prosecutors’ office. According to the Amendment, the KFTC may impose a sur - charge of up to 20% of the relevant revenue for cartels and raised the maximum amount of fixed surcharge to KRW4 billion, which is twice the amount in the previous MRFTA. However, for conduct that ended before the effective date of the Amendment (30 December
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