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경쟁법 집행의 정점과 과제 : 부당한 공동행위에 대한 과징금의 검토
김성훈 ( Seong Hoon Kim ) 韓國競爭法學會 2009 競爭法硏究 Vol.20 No.-
Monopoly Regulation and Fair Trade Act ("MRFTA") provides various remedies against cartel. They include cease and desist order, administrative fine and criminal sanction. Korea Fair Trade Commission("KFTC") has a discretion of imposing administrative fine, subject to judicial review and it is most frequently used sanction. According to Korean Supreme Court, administrative fine on cartel has disgorgement character as a main purpose, but it has punitive character also. Under MRFTA article 22 and MRFTA enforcement decree article 9, administrative fine can be imposed to the extent not exceeding 10% of affected turnover. The affected turnover has three factors according to above articles. They are (1) affected product, (2) duration of violation and (3) Turnover. Recently, court has been active in reviewing the appropriateness of administrative fine and there have been many debates over the meaning of affected product, among other things. Even though there are some court decisions about affected product, clear interpretation of affected product has not been well settled yet. The purpose of this study is to propose clearer guidance of the interpretation of the affected product, mainly, and other related issues through comparative study and analysis of court decisions. From the perspective of comparative study, U.S., EU, and the Netherlands are operating similar affected turnover standard with Korea. The Federal Sentencing Guideline of U.S. provides that the fine for the cartel will be calculated based on 20% of the volume of affected commerce. U.S. Supreme Court has not made a decision regarding the meaning of the volume of affected commerce. However, there are four U.S. Circuit Court decisions. According to them, it is presumed that turnover during the violation is affected by the violation, but the defendant may rebut that presumption by offering evidence that certain sales, even though made during a period when the conspiracy was effective, were not affected by the conspiracy. EU and the Netherlands don`t use that kind of presumption structure. They focus on whether a price of the certain product is influence by the violation or not. If they are influenced, they are included in the affected turnover. Court decisions of Korea are in line with EU and the Netherlands. Court focus on whether the price of specific product is influenced by the conspiracy even though the product was not directly included in the conspiracy. In conclusion, the meaning of `affect` is the key of clear interpretation of affected prodcut. Based on the disgorgement character of the administrative fine on cartel, `affect` should mean the situation where cartel participants exploit some additional benefits which would have not been available without cartel. Thus, if the price of a specific product is maintained or increased, output is decreased, innovation is hindered or other equivalent things occur, the product is affected product even though it is not included in the agreement of the cartel participants. This interpretation is also in line with the court decisions and other jurisdictions` standard.
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Special Articles on Fair Trade Law : Supreme Court Rulings on Determining the Cartel End Date
( Seong Un Yun ),( Sung Ho Moon ),( Nam Woo Kim ) 서울대학교 법학연구소 2015 Journal of Korean Law Vol.15 No.1
Since the very nature of cartels is to operate in ways that are undisclosed and difficult to track, it is often a matter of heated dispute in courts as to when a cartel has ended or been abandoned. Moreover, the cartel duration is a critical issue because it affects not only the level of sanctions imposed, but also the damages amount sought against the cartelists. The Korean Supreme Court has issued several important rulings regarding this matter, but there still remain areas where further guidance and clarification would be beneficial. Thus, this article explores the relevant Korean Supreme Court rulings and concludes that it is time for the highest court to further articulate the legal test for determining the ending date of a cartel in an effort to eliminate legal uncertainty and establish clearer guidance for market participants.
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Supreme Court Rulings on Determining the Cartel End Date
윤성운,문성호,김남우 서울대학교 아시아태평양법연구소 2015 Journal of Korean Law Vol.15 No.1
Since the very nature of cartels is to operate in ways that are undisclosed and difficult to track, it is often a matter of heated dispute in courts as to when a cartel has ended or been abandoned. Moreover, the cartel duration is a critical issue because it affects not only the level of sanctions imposed, but also the damages amount sought against the cartelists. The Korean Supreme Court has issued several important rulings regarding this matter, but there still remain areas where further guidance and clarification would be beneficial. Thus, this article explores the relevant Korean Supreme Court rulings and concludes that it is time for the highest court to further articulate the legal test for determining the ending date of a cartel in an effort to eliminate legal uncertainty and establish clearer guidance for market participants.
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자진신고자 감면제도의 개정이 담합 적발률과 담합 형성률에 미치는 영향
이효원(Hyo Won Lee),최윤정(Yun Jeong Choi) 한국경제연구학회 2014 한국경제연구 Vol.32 No.2
자진신고자 감면제도는 담합을 적발하고 담합의 형성을 억제하는 데 있어 경쟁당국의 핵심적인 제도로 인정되어 왔다. 본 연구는 포아송 회귀분석을 통해 2005년 4월에 시행된 자진신고자 감면제도의 개정이 담긴 담합 적발률과 형성률에 어떠한 영향을 미쳤는지에 대해 살펴보았다. 실증분석 결과, 자진신고자 감면제도의 개정이 담합 적발률을 향상시켰다는 가설이 지지되었으며, 담합 형성률 감소도 부분적으로 지지되었다. 적발된 담합의 평균 담합지속기간에 대한 분석 또한 자진신고자 감면제도의 도입과 개정이 담합의 적발에 효과가 있었음을 간접적으로 뒷받침하였다. 이러한 결과는 1순위 자진신고자와 조사협조자에게 완전면책을 부여한 2005년의 제도 개정효과에 대한 실증적 근거를 제공한다. The corporate leniency program has played an important role in detecting cartels that damage consumer welfare and competition. This study investigates the impacts of Korea’s leniency revision in 2005 on cartel stability by using a Poisson regression. The estimatin results based on the theoretical model of Miller(2008) show that the new leniency program increased the detection rate and decreased the formation rate. Therefore, the effectiveness of the full leniency to the first applicants under the new leniency program provides some policy implication on the revision direction of the leniency program.
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