Korean Antitrust for Proof of Price-Fixing: Comparative Analysis with the U.S. Antitrust

Abstract

Antitrust finds competitors price-fixing illegal per se. Parallel pricing among competitors has been frequently observable in daily economic lives, and it becomes more and more so by virtue of technological developments and globalization in the 21st century. The question is whether the evidence tells us unlawful price-fixing is occurring. Indeed, it is one of the most challenging questions in antitrust jurisprudence, requiring tight legal standards for deriving conspiratorial price-fixing from the evidence. This article addresses Korean and the U.S. antitrust approaches to this issue by identifying and evaluating their legal devices and reasoning processes in light of relevant comparable cases of the two antitrust authorities. It argues that more practical use of legal devices is necessary to the extent that parallel pricing phenomenon may be consistent with a legitimate explanation as with a collusive explanation. This article concludes that since procedural devices may functionally minimize mistaken conclusions based on ambiguous evidence, they should be carefully employed along with reasoned analysis for competitive harm.