SOUTH KOREA Law and Practice Contributed by: John H. Choi, Changhun Lee, Hyunah Kim and Jae-Hyuk Choi, Shin & Kim
4.8 The Role of Experts During the KFTC’s investigation and deliberation process, the KFTC examiner or the investigated company may receive help from experts. There are cases where expert opinions are submitted during the KFTC procedure, or where experts attend the KFTC hearing in person to present their opinions. However, expert involvement is not common for a cartel case in a KFTC pro - ceeding. On the other hand, in a civil damages lawsuit for a cartel it is common for experts such as economists to be involved as appraisers in order to prove damages. 4.9 Possibility of Multiple Proceedings In cases where multiple cartel proceedings are at issue based on the same or related facts, the KFTC may, at its discretion, handle them sep - arately or in a simultaneous process. In these cases, however, it is common for the KFTC to handle them through a simultaneous process. 5. Sanctions and Remedies in Criminal Cartel Enforcement 5.1 Imposition of Sanctions/Fines The KFTC may impose remedial orders and a surcharge directly on a company involved in a cartel in violation of the MRFTA. See 1.2 Regula- tory/Enforcement Agencies and Penalties . 5.2 Plea Bargaining/Settlement There is no plea bargaining or settlement system for a cartel case in Korea. 5.3 Effect of Liability Being Established If the KFTC finds an illegal cartel and imposes sanctions, it tends to be easily recognised in court in a related damages lawsuit that there was illegal cartel conduct. Of course, the court is not bound by the KFTC’s determination.
If the KFTC imposes sanctions for cartel conduct, it may ask an administrative agency to limit the eligibility of a company that participated in the cartel to participate in bidding processes. The head of the administrative agency that receives the KFTC’s request may limit such company’s eligibility to participate in bidding processes for a certain period of time. 5.4 Sanctions and Penalties in Criminal Proceedings See 1.2 Regulatory/Enforcement Agencies and Penalties and 4.6 Issuing Criminal Indictments. The type and amount of penalties imposed in a criminal proceeding on a company that par - ticipated in a cartel are determined by the court. The prosecutor asks the court to impose certain penalties. At this time, the KFTC does not pre - sent any opinions. 5.5 History of Criminal Sanctions Under the MRFTA, cartel conduct is subject to criminal penalties of imprisonment for up to three years or a fine of up to KRW200 million. Criminal liability extends not only to companies participating in cartels but also to their officers and employees. From 1981 through 2023, the KFTC referred a total of 255 cartel cases for prosecution, with three referrals made in 2023. Due to the varying factual circumstances of indi - vidual cases, it is difficult to identify an average penalty. While imprisonment sentences were often suspended in the past, courts have more recently begun imposing actual prison terms. Moreover, Korean nationals have been sanc - tioned in foreign jurisdictions for their involve - ment in cartel conduct. For example, in the 2007 D-RAM price-fixing case and the 2008 LCD car - tel case, executives and employees of Korean
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