SOUTH KOREA Law and Practice Contributed by: John H. Choi, Changhun Lee, Hyunah Kim and Jae-Hyuk Choi, Shin & Kim
impose administrative sanctions such as reme - dial orders and surcharges on companies that violate the MRFTA by participating in cartels. The KFTC handles a case through examination, deliberation and decision. The KFTC’s “examination” refers to a series of investigation processes by the KFTC after it has received information about an MRFTA violation, until it determines the need for deliberation and a decision in respect of the case. Parties, interest - ed persons and witnesses may submit opinions or make statements at the investigation stage. If the KFTC examiner determines that an MRFTA violation is established after the examination and submits an examiner’s report to the KFTC (com - posed of nine members, including the chairman and vice chairman), the “deliberation” process commences. After a respondent is provided with the examiner’s report and the attached materi - als, the respondent not only has the opportunity to submit opinions and explanatory materials but also to attend the hearing and give testimony. The KFTC must hold hearings for two or more days upon request if a company is a party and has five or more participants (or 15 or more in the case of a cartel case), or if the estimated maximum amount of the fine is at least KRW100 billion (at least KRW500 billion in a cartel case). The Commission will listen to the opinions of the parties and interested persons, examine the evidence, deliberate whether there has been a violation of law, and impose measures through “decision” . Access to Material The respondent may request to access and copy materials not disclosed in an examiner’s report. The KFTC must allow access and copying, except for trade secrets, leniency material and
confidential material according to other laws. In the case of trade secrets or leniency materials, access or copying is, however, permitted with the consent of the submitter. In addition, in the case of material containing trade secrets, the respondent can access the material through a restricted method pursuant to the decision of the KFTC, even without the consent of the sub - mitter. A person granted access by the KFTC is limited to the respondent’s external lawyer. The lawyer can access confidential information (trade secrets) by entering the data room located in the KFTC’s office. The lawyer who used the data room is prohibited from expressly writing down the confidential information. The lawyer who used the data room may not disclose the confidential information to anyone, including the respondent. Burden of Proof The KFTC bears the burden of proof for all the elements for establishing a cartel, such as the existence of an agreement prohibited by the MRFTA and an anti-competitive effect. However, if there is external conformity of business enti - ties’ conduct (ie, two or more business entities engage in conduct falling under a type of car - tel), and there is considerable probability that the business entities acted jointly, an agreement is presumed by law. If an agreement is presumed by law, the KFTC only needs to prove anti-com - petitive effect, and the business entity must prove the absence of an agreement. Meanwhile, the Amendment added a provision that if there is external conformity of business entities’ conduct and the information necessary for such conduct is exchanged, an agreement is presumed by law. The rules for presuming an agreement for information exchange apply only to conduct that is terminated after the effective date of the Amendment (30 December 2021).
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