Information Exchange as a Type of Agreement?

Abstract

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.