Information Exchange as a Type of Agreement?

윤신승,Kenneth T.Kim,김미정 서울대학교 아시아태평양법연구소 2015 Journal of Korean Law Vol.15 No.1

Article 19(1) of the Monopoly Regulation and Fair Trade Act prescribes that an anticompetitive “agreement” among enterprisers exists as a requirement for establishing an unreasonable col-laborative act. The requirements and standards that are necessary for finding the existence of an “agreement” based on information exchange as evidentiary grounds when there is an in-formation exchange without any explicit agreement or direct evidence has become a critical legal issue in Korea While lower courts previously provided legal standards in regard to such issue, in July 2014, for the first time the Korean Supreme Court rendered a landmark decision regarding the re-quirements and determination standards for finding information exchange among competitors as an agreement in the case concerning information exchange by sixteen life insurance compa-nies. In the above case, the Korean Supreme Court held that (i) under the MRFTA the existence of an unreasonable collaborative act was not directly established based solely on the existence of information exchange, although information exchange can be used as compelling evidence in finding reciprocity in meeting of the minds among enterprisers and (ii) in such case, the exist-ence of an agreement has to be established by comprehensively considering the totality of cir-cumstances, such as the structure and special characteristics of the relevant market and the na-ture and details of the exchanged information, etc. In sum, it may be viewed that courts in Korea continue to develop an autonomous theory of interpretation in order to regulate information exchange as an unreasonable collaborative act, while not damaging the significance of the existence of an “agreement” under the current MRFTA regime. Article 19(1) of the Monopoly Regulation and Fair Trade Act prescribes that an anticompetitive “agreement” among enterprisers exists as a requirement for establishing an unreasonable col-laborative act. The requirements and standards that are necessary for finding the existence of an “agreement” based on information exchange as evidentiary grounds when there is an in-formation exchange without any explicit agreement or direct evidence has become a critical legal issue in Korea While lower courts previously provided legal standards in regard to such issue, in July 2014, for the first time the Korean Supreme Court rendered a landmark decision regarding the re-quirements and determination standards for finding information exchange among competitors as an agreement in the case concerning information exchange by sixteen life insurance compa-nies. In the above case, the Korean Supreme Court held that (i) under the MRFTA the existence of an unreasonable collaborative act was not directly established based solely on the existence of information exchange, although information exchange can be used as compelling evidence in finding reciprocity in meeting of the minds among enterprisers and (ii) in such case, the exist-ence of an agreement has to be established by comprehensively considering the totality of cir-cumstances, such as the structure and special characteristics of the relevant market and the na-ture and details of the exchanged information, etc. In sum, it may be viewed that courts in Korea continue to develop an autonomous theory of interpretation in order to regulate information exchange as an unreasonable collaborative act, while not damaging the significance of the existence of an “agreement” under the current MRFTA regime.

Special Articles on Fair Trade Law : Information Exchange as a Type of Agreement?

( Sin Sung (sean) Yun ),( Kenneth T Kim ),( Mi Jung Kim ) 서울대학교 법학연구소 2015 Journal of Korean Law Vol.15 No.1

Article 19(1) of the Monopoly Regulation and Fair Trade Act prescribes that an anticompetitive “agreement” among enterprisers exists as a requirement for establishing an unreasonable collaborative act. The requirements and standards that are necessary for finding the existence of an “agreement” based on information exchange as evidentiary grounds when there is an information exchange without any explicit agreement or direct evidence has become a critical legal issue in Korea While lower courts previously provided legal standards in regard to such issue, in July 2014, for the first time the Korean Supreme Court rendered a landmark decision regarding the requirements and determination standards for finding information exchange among competitors as an agreement in the case concerning information exchange by sixteen life insurance companies. In the above case, the Korean Supreme Court held that (i) under the MRFTA the existence of an unreasonable collaborative act was not directly established based solely on the existence of information exchange, although information exchange can be used as compelling evidence in finding reciprocity in meeting of the minds among enterprisers and (ii) in such case, the existence of an agreement has to be established by comprehensively considering the totality of circumstances, such as the structure and special characteristics of the relevant market and the nature and details of the exchanged information, etc. In sum, it may be viewed that courts in Korea continue to develop an autonomous theory of interpretation in order to regulate information exchange as an unreasonable collaborative act, while not damaging the significance of the existence of an “agreement” under the current MRFTA regime.

특집논단 : 부당한 공동행위에 대한 과징금 산정의 실무상 쟁점

홍대식 ( Dae Sik Hong ) 한국경쟁법학회 2015 競爭法硏究 Vol.32 No.-

This paper aims to raise several issues in practice regarding calculating administrative fine against unreasonable concerted acts based on theoretical approach to the purpose of the imposition of administrative fine and analysis on decisional practice of the Supreme Court of Korea, and seeks for the improvement methods thereto. The main points of this paper can be summarized as follows: Firstly, the purpose of the imposition of administrative fine can be understood as the achievement of optimal level of deterrence through the internalization of social harm. Due to the difficulty of measuring deadweight loss, one of the components of social harm, the practical method is to estimate the scale of illegal gains with which the amount of administrative fine is reviewed about whether or not it is balanced. Secondly, the base amount of the fine against unreasonable concerted acts is calculated by multiplying the relevant turnover of a violator by a prescribed imposition rate. This so-called relevant turnover-based method is set up as the proxy for simplifying the calculation mechanism of the administrative fine. Therefore, in calculating the relevant turnover resonable ways should be applied to make sure that the calculated amount by a normal imposition rate shall be an amount corresponding to the purpose of the imposition of fine. Thirdly, the Supreme Court of Korea regards a factor of goods included in contents of agreement as important for its judgment of the scope of the relevant goods required for the relevant turnover. Based on the precedents of the Supreme Court, several factors can be identified as those to be taken into account for whether the scope of the relevant goods can be extended to other goods than those included in contents of agreement as those affected by the violation directly or indirectly. Fourthly, for the purpose of the assessment of the severity of a violation by which the imposition rate is determined, a fining methodology should be developed which takes into account object-based assessment factors and effects-based assessment factors equally. Lastly, in case that there are special circumstances under which optimal amount of fine cannot be calculated by the current system adopted by the Korea Fair Trade Commission (‘KFTC’) at the adjustment stage in spite of no or little illegal gains, it is required that the KFTC should set the imposition rate reasonably at the base amount determination stage considering the scale of illegal gains or industrial and market factors affecting such.

공정거래법상 카르텔 규제의 쟁점

홍대식(Hong, Dae Sik) 한국경제연구원 2010 규제연구 Vol.19 No.2

본 연구는 공정거래법상 카르텔 규제의 법적 쟁점을 카르텔 규정의 해석 및 적용과 관련된 실체법적 쟁점을 중심으로 살펴보는 것을 목적으로 한다. 첫째, 합의 요건에 관하여, 대법원은 합의 요건을 형식적으로 해석하는 경향을 보이면서도, 합의의 의미와 범위를 명확히 하고 정황증거에 의하여 합의의 존부를 판단하기 위한 기준으로서의 법리 개발은 충분히 이루지 못했다. 둘째, 위법성 요건과 관련해서, 대법원은 최근 들어 경쟁제한성 요소의 의미와 판단기준을 보다 명확히 하고 부당성을 별개의 요소로 인식함으로써 예외적 사정, 특별한 사정이 있는 사안에 대한 구체적 타당성 있는 법리를 찾아가는 노력을 보여주고 있다. 이러한 법원의 판단 방식은 그동안 합의의 도그마의 문제 또는 부당성 판단의 체계상의 혼란 문제를 야기한다는 이유로 학계 일부로부터 공격을 받아 왔다. 그러나 현재까지 나타난 판례들을 종합할 때, 카르텔 규제 법리의 발전이 일정한 방향성을 보이고 있다는 점이 점점 명확해지고 있다. 따라서 법원의 판례를 부정하고 극복하려고만 하기보다는 그 취지를 존중하면서 좀 더 타당성 있는 법리가 개발될 수 있도록 카르텔 규제와 관련된 당사자 및 이해관계자들의 배전의 노력이 필요한 시점이라고 생각된다. This article aims to examine legal issues on cartel regulation under the Korean Competition Law focusing on substantive law issues relating to the interpretation and application of the cartel provision. Firstly, regarding the agreement requirement, the Supreme Court has yet to achieve sufficient development of the legal doctrines as standards for clarifying the meaning and scope of the agreement and deciding whether the agreement exists based on circumstantial evidence while it tends to interpret the agreement requirement formally. Secondly, in relation to the illegality requirement, it shows its endeavor to seek concrete and reasonable legal doctrines fit for cases with exceptional or special circumstances by making clear the meaning and standard of anti-competitiveness element and perceiving unreasonableness as separate element. This way of judgment adopted by the court has been attacked from some of the academic world for the reasons of causing the problems of dogmatic approach to the agreement or systemic confusion on the unreasonableness element. However, it is increasingly clearer that the development of legal doctrines on cartel regulation has a certain direction from the standpoint of comprehensive understanding of court cases so far. Therefore, it is regarded that it is time for the parties and interested persons concerned with the cartel regulation to make redoubled efforts to develop more reasonable legal doctrines respecting the purpose of court cases.