SOUTH KOREA Law and Practice Contributed by: John H. Choi, Changhun Lee, Hyunah Kim and Jae-Hyuk Choi, Shin & Kim
exchange information between companies restricts competition. The conduct of substan - tially restricting competition in certain areas of transaction by exchanging price, production volume and other information prescribed by presidential decree was added as a type of car - tel. Other information prescribed by presiden - tial decree of the MRFTA includes the following information on goods or services: • the cost of goods or services; • delivery, inventory, or sales volume; or • the transaction terms, price, or payment terms. The Amendment’s provision that regards infor - mation exchange as a type of cartel does not apply to conduct that has been terminated before the effective date of the Amendment (30 December 2021). Joint conduct between competitors that is not anti-competitive is not prohibited. In this regard, according to the KFTC’s Guidelines for Cartel Review, if the combined market share of the companies that participated in the cartel does not exceed 20%, the KFTC will end its review based on the view that an anti-competitive effect will not arise due to the joint conduct or that the anti-competitive effect is minimal. In addi - tion, a cartel is exceptionally permitted if it has been approved by the KFTC on the grounds that its purpose is for industrial restructuring to help overcome recession, develop research and technology, improve trade term rationalisation, and improve the competitiveness of small and
• if the KFTC has commenced an investigation into an MRFTA violation – five years from the investigation commencement date; or • if the KFTC has not commenced an investiga - tion into an MRFTA violation – seven years from the date of termination of the violation. Even if seven years have elapsed since the date of the cartel participants’ agreement, the KFTC may impose sanctions if the cartel is still in pro - gress. However, if a sanction has been cancelled according to a court’s decision and a new sanc - tion has been imposed according to a court’s decision, the provision on the limitation period above does not apply. If an applicant filed for leniency by specifying the details of the cartel and the KFTC conducted an on-site investiga - tion afterwards, the date the KFTC commenced its investigation is not the date of the on-site investigation but the date of the leniency filing. Regarding an MRFTA violation other than a cartel, the statute of limitations for the KFTC to impose remedial orders or surcharge is seven years from the end date of the alleged violation. Unlike in the case of cartels, the statute of limita - tions does not differ based on whether the KFTC has commenced its investigation. 1.6 Jurisdiction Cartels outside Korea may also be regulated by the KFTC under the MRFTA if they affect the Korean market. In this regard, in an appeal of an air cargo case, the Korean Supreme Court held that the MRFTA’s scope of application for over - seas conduct should be limited to overseas con - duct that has a direct, substantial and reason - ably foreseeable effect on the domestic market. Meanwhile, the Korean Supreme Court has determined that if the Korean market is included in the subject of an anti-competitive agreement
medium-sized businesses. 1.5 Limitation Periods
The KFTC may not impose remedial orders or a surcharge on a cartel if the following limitation period has elapsed:
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