Recent Developments in the Treatment of Collusion by Korean Courts

Abstract

The purpose of this article is to provide an analytical introduction to recent developments in Korean competition law through the prism of court precedents dealing with collusion. Under the Korean regulation system, the investigation and sanctioning of collusion is the responsibility of the Korea Fair Trade Commission (the KFTC). Prior to 1994, Korean enterprises rarely appealed decisions of the KFTC to the competent court, with the result that Korean courts were unable to develop substantial expertise in the field of competition law. Since that time, however, the number of appeals has increased. As court precedents have accumulated, judges have gradually improved their understanding of the Monopoly Regulation and Fair Trade Act (the MRFTA). However, judges have repeatedly demonstrated an unwillingness to articulate specific rules to be referenced in similar instances, preferring to restrict themselves to deciding the case at hand. Yet notwithstanding this mixed record, a more promising trend is evident in recent decisions dealing with collusion. In such decisions, the Supreme Court has begun to articulate specific rules to be applied in similar cases. Moreover, some courts have recently attempted to utilize economic analysis more broadly in their review of cases under the MRFTA. If such efforts are expanded, they could herald an era of unprecedented growth and development of competition law in Korea.