SOUTH KOREA Law and Practice Contributed by: John H. Choi, Changhun Lee, Hyunah Kim and Jae-Hyuk Choi, Shin & Kim
4.3 Obtaining Evidence From Entities Outside the Jurisdiction The KFTC can seek information directly from companies or individuals located outside the jurisdiction by issuing requests for information. In this case, the KFTC will usually require the relevant entity to designate a representative in Korea to receive the request for information, and then send the request for information to such representative. However, if the entity does not designate a representative in Korea, then the KFTC will use a method in accordance with the Administrative Procedure Act, such as delivery by post. 4.4 Domestic Inter-Agency Co-Operation When deemed necessary for enforcement of the MRFTA, the KFTC may ask the head of a rel - evant administrative agency or other institution or organisation to conduct the necessary inves - tigation or to share the necessary information. In practice, however, this is not common. 4.5 International Inter-Agency Co- Operation The KFTC actively co-operates with foreign enforcement agencies in the investigation of international cartel cases. Of course, the degree of co-operation may vary from case to case, but the KFTC communicates with foreign enforce - ment agencies through various channels. 4.6 Issuing Criminal Indictments As mentioned in 1.2 Regulatory/Enforcement Agencies and Penalties , the MRFTA has a pro - vision on criminal punishment for cartels, which happens through indictment by the prosecutors’ office. In principle, the prosecutors’ office can indict for violations of the MRFTA, including car - tels, only when the KFTC files a referral to the prosecutors’ office. However, according to the MRFTA, if the degree of the violation is objec -
tively clear and serious so that it clearly hinders competition, the KFTC must file a referral to the prosecutors’ office. In this case, the prosecutor general may even ask the KFTC to file the refer - ral to the prosecutors’ office, which the KFTC chairman is obliged to do. In addition, even if the KFTC has determined that the requirements for filing the referral have not been met, the chairman of the Board of Audit and Inspection, the minister of the Ministry of SMEs and Startups, and the administrator of the Public Procurement Service may request that the KFTC file the referral to the prosecutors’ office based on social impact, the effect on national finance, and harm to small and medium-sized business - es. In such a case, the KFTC chairman must also file the referral to the prosecutors’ office. If the prosecutors’ office indicts pursuant to the KFTC’s referral, a criminal trial will proceed in court. A defendant in a criminal case involving a cartel is guaranteed the right to counsel, as in criminal cases in general. If the prosecutor submits materials from the KFTC as evidence, the defendant may access and copy such evi - dence. In addition, the defendant may attempt to obtain materials in the KFTC’s possession that the prosecutor has not submitted as evidence by means such as sending a fact enquiry or request for a document. In a criminal proceeding involving a cartel, the prosecutor has the burden of proving that the cartel constitutes a crime. 4.7 Issuing Civil Complaints Procedure for Imposing Administrative Measures Unlike the legislation of countries where the competition authority brings a civil action, as a regulatory authority, the KFTC may directly
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