SOUTH KOREA Law and Practice Contributed by: John H. Choi, Changhun Lee, Hyunah Kim and Jae-Hyuk Choi, Shin & Kim
2021), the increased maximum surcharge does not apply, and the previous provision applies. The MRFTA also has a provision on criminal pun - ishment for cartels. A person who has engaged in a cartel may be subject to imprisonment for up to three years or a fine of up to KRW200 mil - lion, and a company that has engaged in a cartel may also be subject to a fine. If the company is a corporation, its representatives and employees may also be subject to criminal punishment. 1.3 Private Enforcement A person who has suffered damages due to a cartel may file a damages lawsuit against the cartel participant. In such a case, standing for plaintiffs in the damages lawsuit is not necessar - ily limited to the cartel participant’s competitor or direct transaction counterparty. Meanwhile, although a private person may report a cartel to the KFTC in order to urge the KFTC to inves - tigate, a private person cannot directly file a lawsuit seeking to impose remedial orders or a surcharge on a cartel participant. The limit in a damages lawsuit for a cartel was previously actual damages, but this has been changed with the adoption of punitive damages. The punitive damages provision regarding car - tels applies to violations that occur for the first time from September 2019. Accordingly, a cartel participant is liable for damages not exceeding three times the actual damages to the injured party. The court, when deciding the amount of dam - ages not exceeding three times the actual dam - ages, considers the cartel participant’s intention, the degree of harm, the economic benefit gained by the cartel participant, a fine and surcharge for the violation, the duration and number of viola- tions, the cartel participant’s financial situation,
the degree of effort made to provide relief for harm, etc. However, if a cartel participant has filed for leniency and been granted leniency sta - tus, the cartel participant is liable only within the
scope of actual damages. 1.4 “Cartel Conduct”
Regarding cartels, the MRFTA provides that a company shall neither agree with any other company to jointly perform the following acts that unfairly restrict competition nor require any other company to engage in such illegal cartel conduct under contract, agreement or arrange - ment, or in any other manner: • price fixing; • determining terms and conditions for transac - tions; • output restrictions; • imposing limitations on the area in which transactions can be conducted, or transac - tion partners; • hindering installation of facilities; • imposing limitations on the kinds of, and standards for, goods or services to be pro - duced or traded; • jointly conducting and managing substantial business activities; • bid rigging; and • any other conduct that substantially restricts competition in certain areas of transaction by interfering with or imposing limitations on the business activities or the business of any other company, or by exchanging price, production volume and other information prescribed by presidential decree. Previously, Korean courts determined that infor - mation exchange itself was not a cartel. Unlike the previous MRFTA, the Amendment includes information exchange as a type of cartel and prohibits an agreement if such agreement to
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