SOUTH KOREA Law and Practice Contributed by: John H. Choi, Changhun Lee, Hyunah Kim and Jae-Hyuk Choi, Shin & Kim
2.7 Non-Cooperation It is common for the investigated company to co-operate with the KFTC’s investigation, to the extent possible, taking into account both the legal and practical aspects. As mentioned ear - lier, in the event of interference with the KFTC’s investigation, there is a possibility of criminal punishment, and in the event of failure to attend an interview or failure to comply with an order to submit materials, an administrative fine or enforcement fine may be imposed. In addition, any surcharge imposed for the cartel may be reduced by up to 20%, depending on the degree of co-operation with the investiga - tion. From a practical aspect, giving the KFTC the impression of co-operating fully with the investigation will help to bring about a positive result through smooth communication with the KFTC. 2.8 Protection of Confidential/Proprietary Information The investigated company cannot refuse to sub - mit materials requested by the KFTC solely on grounds that such materials are confidential or proprietary information. Rather, it is the obliga - tion of the KFTC officials to keep information they have discovered about a company as a result of their investigation confidential, and not use such information for purposes other than enforcement of the MRFTA. If materials requested by the KFTC include infor - mation protected by the Personal Information Protection Act, such as employees’ registration numbers and addresses, the investigated com - pany may submit materials after excluding the parts containing such personal information.
Defence counsel may request the exclusion from the submission of materials that are unrelated to the subject of the investigation through discus - sion with the KFTC. 2.5 Obtaining Evidence/Testimony When necessary for the investigation, the KFTC’s investigating official may obtain statements from the investigated company, interested persons and reference persons, and may order the sub - mission of necessary materials and hold them in custody. Although the KFTC’s investigation procedure is based on the consent of the investigated com - pany, the MRFTA does have certain measures in place for enforcement. For example, in the case of failure to attend an interview without justifiable cause, an administrative fine of up to KRW100 million for companies and up to KRW10 million for employees or interested persons may be imposed. In addition, those who refuse to submit materi - als without justifiable cause may be subject to an enforcement fine not exceeding 3/1,000 of the average daily sales revenue for each day of delay. For more details regarding the KFTC’s collection of evidence and testimony, see 2.2 Dawn Raids/ Search Warrants . 2.6 Attorney-Client and Other Privileges Korean law does not recognise the principle of attorney-client privilege. The privilege against self-incrimination is not recognised in the KFTC investigation process. However, if the prosecutor indicts with respect to the cartel conduct and a criminal proceeding is commenced, the privilege is recognised.
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