SOUTH KOREA Law and Practice Contributed by: John H. Choi, Changhun Lee, Hyunah Kim and Jae-Hyuk Choi, Shin & Kim
above, and the applicant must be the second person to exclusively provide the evidence nec - essary to prove the existence of collusion, pro - vided that the leniency application is filed within two years of the date of the first applicant’s leni - ency filing. If only two companies participated in the cartel, it is not possible for a company to obtain second-priority leniency status. The KFTC is required to give the applicant with the second-priority leniency status a 50% reduction of the surcharge payment while it is not required, but may decide to give full immu - nity from remedial measures and immunity from criminal referral. In practice, the KFTC provides full immunity from criminal referral as well. Leniency application process In principle, a leniency application must be in writing, and it may be submitted by visiting the KFTC, or via email or fax. A leniency applica - tion must include an overview of the collusion at issue at the time of filing. The application may be supplemented to meet the legal requirements within a certain period. The application supplement period cannot exceed 15 days, but an additional 60-day period may be granted at the KFTC case handler’s dis - cretion. Where necessary, the case handler may even grant more than 60 days for the additional period. However, a leniency application filed by one company can only be supplemented to a joint leniency application within the first 75-day period. Recognition of leniency status Priority for a leniency applicant is determined by the time of receipt of the leniency applica - tion. The KFTC case team eventually issues an examiner’s report as to whether the applicant has satisfied all the requirements to be granted
leniency status, and submits the report to the commission. In the KFTC’s review process, it generally holds a hearing which is, in practice, separate from the hearing of the main collusion case. The KFTC typically holds a (closed) hear - ing for the leniency application review and a hearing for the main collusion case on the same day. Once the hearing for the leniency applica - tion review is concluded, the KFTC renders a Under certain circumstances, the KFTC may revoke a reduction or exemption of remedial orders or surcharges granted to an applicant with leniency status, namely: • if the applicant provides statements during a trial that differ from those made during the investigation; • if the applicant’s statements or documents submitted during the investigation are found to be false during the trial; or decision on leniency status. Withdrawal of leniency status • if the applicant files a lawsuit denying the car - tel conduct for which leniency was granted. Criminal Leniency Programme For cartel cases, the MRFTA gives the KFTC the exclusive right to make a criminal referral, and the prosecutors’ office can proceed with an indictment only where there was a criminal refer - ral from the KFTC. However, the Criminal Leni - ency Guidelines allow the prosecutors’ office to commence investigation of hard-core cartels directly reported to or detected by the prosecu - tors’ office, even without the KFTC’s referral. In terms of the structure of the leniency pro - gramme, eligibility and conditions for criminal leniency applications are similar to those for the KFTC leniency programme – ie, first to provide evidence, the duty to co-operate (including a
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