SOUTH KOREA Law and Practice Contributed by: John H. Choi, Changhun Lee, Hyunah Kim and Jae-Hyuk Choi, Shin & Kim
2.9 Arguments Against Enforcement Actions There is no separate provision on procedure for defence counsel to defend the investigated company in response to a KFTC investigation. In the course of the KFTC’s investigation and review, defence counsel may present opinions regarding the facts and legal interpretation to the KFTC in the form of a statement or written submission, in order to defend the investigated company and persuade the KFTC not to take action against it. 3. Leniency, Immunity and Whistle- Blower Regimes 3.1 Leniency The MRFTA provides for a leniency programme. As a result, the KFTC may exempt a company or grant a reduction in remedial orders and sur - charge to companies that have filed a leniency application for a cartel. The KFTC may also exempt the leniency applicant from referral to the prosecutors’ office. According to the antitrust and competition white paper issued by the KFTC in 2023, the leniency programme was used in 60.1% of the cartel cases in which a surcharge was imposed from 1999 to 2024; from 2005 to 2024, in particular, this rose to 63.2%. Meanwhile, in December 2020, the prosecu - tors’ office implemented a new criminal leniency programme for cartel cases by introducing the Guidelines for the Reduction of Penalty in Cartel Cases and Investigation Procedures (the “Crimi- nal Leniency Guidelines” ). In this article, the term “KFTC leniency programme” is used to refer to the leniency programme under the MRFTA that is administered by the KFTC, and the term “crimi-
nal leniency programme” to refer to the leniency programme led by the prosecutors’ office. KFTC Leniency Programme Applied standards for leniency To obtain first-priority leniency status, an appli - cant must satisfy all the following requirements: • (a) the applicant must be the first person to exclusively provide the evidence necessary to prove the existence of collusion; • (b) at the time of the leniency filing, the KFTC must not have obtained information about the collusion, or not enough evidence to prove the existence of collusion; • (c) the applicant must co-operate in good faith until the end of the KFTC review process by stating all the facts related to the collusion and submitting related information; • (d) the applicant must stop its participation in the collusion; and • (e) the applicant must not have coerced another enterprise to participate in collusion, nor have repeatedly committed collusion over a certain period in violation of the MRFTA. Under the MRFTA, joint leniency applications are permitted. Companies can apply jointly if they have a substantive control relationship or if they are involved in corporate spin-offs/transfer of business and did not participate in the cartel conduct in question. The KFTC is required to give the applicant with the first-priority leniency status full immunity from the surcharge payment and remedial meas - ures while it is not required, but may decide at its discretion to give full immunity from criminal referral. To obtain second-priority leniency status, an applicant must satisfy conditions (c), (d) and (e)
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