SOUTH KOREA Law and Practice Contributed by: John H. Choi, Changhun Lee, Hyunah Kim and Jae-Hyuk Choi, Shin & Kim
such as the number of the undertakings involved and the duration of the violation. It typically takes between six months to a year following the investigation phase for the examiner’s report to be issued, respondent’s opinion to be submit - ted, and a hearing to be held. According to court administration statistics, the average duration of administrative law - suits (including cartel and other administrative cases) before the Seoul High Court is approxi - mately 254.9 days from the date of filing. At the Supreme Court level, the average duration is around 133.6 days. Private firms or individuals who have suffered damages due to a cartel may file a damages lawsuit against companies that participated in the cartel. In this case, a plaintiff usually claims tort as the basis for the claim. In Korea, in order for a tort to be established, the plaintiff must prove the following: • unlawful conduct based on the intent or negli - gence of the perpetrator; • victim’s damages; and • causation between the unlawful conduct and the damages. 6. Civil Litigation 6.1 Private Rights of Action The plaintiff may file a damages lawsuit against a company that participated in a cartel even before the KFTC makes a decision regarding a cartel. However, if a damages lawsuit is filed before the KFTC makes a decision, the plaintiff’s burden of proof for establishing the existence of a cartel increases. Therefore, it is common
for the plaintiff to file a damages lawsuit after the KFTC makes a decision, thereby reducing its burden of proof to establish the existence of a cartel. In this case, the main issues for the dam - ages lawsuit are damages and causation. As for the punitive damages provision that has been in effect since September 2019, see 1.3 Private Enforcement . In relation to the damages lawsuit above, the court with jurisdiction over the case is the court with jurisdiction over the defendant’s principal office and the plaintiff’s address. The court with jurisdiction over the place where the cartel con - duct occurred also has jurisdiction over the case. 6.2 Collective Action Cartel victims can file a damages lawsuit as co- plaintiffs. However, the so-called class action system does not apply to a damages lawsuit for cartel conduct. While a class action bill was prepared by the Korean government to be sub - mitted to the National Assembly, the bill was ultimately not submitted. 6.3 Indirect Purchasers and “Passing On” Defences Korean courts have not expressly recognised the passing-on defence. However, by taking into account the portion of damages that were passed on when deciding the amount of dam - ages, Korean courts in fact recognise the pass - ing-on defence in part.
6.4 Evidence Obtained From Governmental Investigations/ Proceedings
Evidence from government investigations or proceedings may be used as evidence in a dam - ages lawsuit for cartels as well. The plaintiff in the damages lawsuit may try to obtain evidence
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