Restraints of trade and dominance in South Korea: overview
A Q&A guide to restraints of trade and dominance in South Korea.
The Q&A gives a succinct overview of restraints of trade, monopolies and abuses of market power in South Korea. In particular, it covers the regulatory authorities and the regulatory framework, the scope of rules, exemptions, exclusions, statutes of limitation, notification, investigations, penalties and enforcement, third party damages claims, EU law, joint ventures and proposals for reform.
For information on merger control, regulatory framework and regulatory authorities, relevant triggering events and thresholds in South Korea, visit Merger control in South Korea: overview.
This Q&A is part of the global guide to competition and cartel leniency. For a full list of jurisdictional Restraints of Trade and Dominance Q&As visit www.practicallaw.com/restraintsoftrade-guide. For a full list of jurisdictional Merger Control Q&As visit www.practicallaw.com/mergercontrol-guide.
For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities in multiple jurisdictions, visit www.practicallaw.com/leniency-guide.
Restraints of trade
Scope of rules
Article 19(1) of the Monopoly Regulation and Fair Trade Act (MRFTA) generally prohibits any agreements between competitors that unreasonably restrain competition.
Fixing, maintaining or changing prices.
Determining terms of trade or payment conditions for goods or services.
Restricting production, distribution or transaction.
Limiting or allocating geographic areas or customers.
Restricting the establishment or extension of facilities and preventing the installation of new equipment.
Restricting the types or specifications of traded goods or services.
Jointly carrying out the main parts of a business, or jointly establishing a company for the same purpose.
Determining the successful bidder or the highest bid in bidding or auctions.
Any other practices that substantially restrict competition in a particular market by obstructing or restraining other companies' business activities.
Article 26 of the MRFTA prohibits the same restrictive activities where they are committed by business associations.
These restrictive agreements and practices are subject to the Korea Fair Trade Commission's (KFTC) administrative sanctions and to criminal prosecution if the KFTC files a complaint with the Prosecutor's Office against enterprises or individuals for violations that seriously restrain competition.
See box, The regulatory authority.
The regulations apply not only to formal agreements but also to informal practices without explicit agreement where (Article 19(5), MRFTA):
Two or more enterprises are conducting any activity which restricts competition in a particular market (see Question 1, Regulatory framework).
Certain circumstances (such as meetings among the competitors) apply.
There are two areas that are generally exempted:
Restrictive practices that are legitimate under any industry-specific laws (Article 58, MRFTA). These are limited statutory exemptions over areas, such as small businesses.
Acts considered to be a reasonable exercise of IP rights, such as (Article 59, MRFTA):
However, this does not mean that the exercise of IP rights is always exempted. Acts carried out in the name of IP rights are subject to the MRFTA if they do not pursue the IP rights' goals of encouraging invention and authorship, but instead restrict competition in technology or product markets. Significant amendments to the Guidelines on the Examination of Unreasonable Exercise of Intellectual Property Rights came into effect on 7 April 2010. The KFTC takes enforcement of these Guidelines seriously.
In addition, some restrictive agreements can be exempted under Article 19(2) of the MRFTA if the KFTC authorises them because they meet the requirements specified in the Enforcement Decree of the MRFTA. These agreements must be conducted for purposes such as:
Research and technology development.
Overcoming economic depression.
Rationalisation of transaction terms and conditions.
Enhancement of small- and medium-sized companies' competitiveness.
However, since the requirements are very hard to satisfy, there have been few applications for individual exemptions.
Exclusions and statutes of limitation
There is no statutory de minimis provision. However, the KFTC excludes certain restrictive practices (other than hard-core cartels) from law enforcement if the participants have less than a 20% market share in the relevant market (KFTC Guidelines on Examination of Concerted Activities).
Statutes of limitation
The KFTC may impose sanctions within five years from the commencement date of investigation by the KFTC. Also, the KFTC may impose sanctions within seven years from the cessation date of the conduct by the party if it does not commence its investigation.
Parties must notify the KFTC if they want the KFTC to exempt or authorise any restrictive agreements.
The KFTC introduced a preliminary business review system (Guidelines on Business Review Application) in 2004. Companies can now ask the KFTC to review whether a business activity violates the MRFTA before engaging in it. Applicants can ask for a review only of a specific and individual activity they are planning to engage in. The KFTC provides guidance within 30 days of receiving the application. The results represent the official view of the KFTC. Therefore, the KFTC will not take any subsequent legal measures against a practice that it considered to be legal.
Responsibility for notification
Two or more parties who wish to obtain authorisation for a restrictive agreement can apply to the KFTC. Either party can notify.
An application for notification must be made to the KFTC.
Form of notification
The applicants must submit the application form set out in the KFTC Guidelines on Application for Approval of Concerted Activities.
Application forms are available at the following link of the KFTC website (www.ftc.go.kr/laws/laws/popRegulation.jsp?lawDivCd=01&firstFtcRelLawNo=10).
No filing fee is charged when applying for authorisation of restrictive agreements and practices.
The KFTC conducts market monitoring. The KFTC can start investigations on its own initiative or can be asked to conduct an investigation by a government agency such as the Board of Audit and Inspection.
The KFTC can start investigations on a third party's complaint. There are no special requirements for making a complaint.
Usually, third parties (including complainants) do not have rights to actively participate. However, they can provide information and opinions at the KFTC's request or on their own initiative. Third parties are not required to show a special interest. The KFTC must notify the initial formal complainant of a hearing date and its decision.
When third parties make a request to the KFTC to access data, the KFTC must comply if this is in the public interest. The person that provided the data must grant consent (see Question 9).
Third parties can be heard before the KFTC issues corrective measures or imposes fines on the violators, if the KFTC permits this.
There are two stages in KFTC proceedings:
An investigation (usually conducted on the premises of the suspected violators) by the enforcement team of the KFTC to:
seize or request documents;
request answers to interrogatories.
After the team review the information and documents obtained, the KFTC issues a written complaint to the suspected parties. The parties are then allowed to examine the complaint and the attached documents and to respond to it in writing or at an oral hearing for the full Commission deliberation (see below).
Deliberation at the full Commission, which comprises nine KFTC commissioners. The full Commission makes a final decision and then notifies the parties.
It is difficult to specify the timetable for cartel cases, but they usually take at least one year from the start of the investigation.
There is no particular procedure or time limit for investigations following notification.
Publicity and confidentiality
The KFTC does not publicise the details of an investigation concerning a potential violation except if the case is being handled or if it is in the public interest. The KFTC does not usually announce that a case is being handled but acknowledges that it is investigating it.
The KFTC keeps information that is essentially related to a party's business secrets confidential. When asked by a third party to disclose information on a particular case, the KFTC provides limited information to protect the confidentiality of business secrets.
Confidentiality on request
Any party can request that certain information it provides to the KFTC should be kept confidential.
The KFTC is granted broad administrative investigative powers, allowing it to (MRFTA):
Require suspected violators and other interested parties to:
present documents or other materials;
provide oral statements or written answers to investigators.
Appoint expert witnesses and request them to give their opinions.
The KFTC investigators can:
Enter the offices or other business places of suspected violators to examine books and records and other materials belonging to the suspected violators.
Seize any documents or materials produced.
Any company that obstructs the KFTC investigation or refuses to comply with any of its requests mentioned above is subject to an administrative fine of up to KRW200 million while any individual that is involved in the obstruction or refusal to comply is subject to an administrative fine of up to KRW50 million.
In criminal investigations following a complaint from the KFTC (see Question 13), the prosecution has investigative powers, as in other criminal cases (such as arrest or search and seizure).
For complaints relating to criminal prosecution, the KFTC refers the suspected parties to the Prosecutor's Office.
The KFTC can:
Order the parties to discontinue the practice.
Publicly announce that it has issued a corrective order.
Take any other actions required.
The KFTC imposes an administrative fine under which companies can be fined a sum not exceeding the equivalent of 10% of the turnover generated by the sale of relevant goods or services during the period of a violation. For criminal penalties, companies are subject to a criminal fine of up to KRW200 million.
Individuals can be subject to either:
Imprisonment of up to three years.
A criminal fine of up to KRW200 million.
The KFTC has a programme for granting automatic immunity from all or part of the administrative fines. The reduction for a party to come forward and provide evidence of a cartel is as follows:
The first party is eligible for full immunity.
The second party is eligible for partial leniency (50% reduction in administrative fines).
Under the amnesty plus scheme, a party that does not qualify for full immunity but reports another cartel (unrelated to the initial cartel) is eligible for an additional less than 20%, 20%, 30%, 50% or 100% reduction in the administrative fines for participating in the initial reported cartel. A party that has coerced other firms to either join or remain in the cartel is excluded from such immunity.
The first party and the second party eligible for immunity are exempt from criminal prosecution.
Impact on agreements
Any contract that unreasonably restricts competition is null and void between the parties (Article 19(4), MRFTA). If the unlawful provisions can be separated from the legal part of the agreement, the agreement remains valid.
Third party damages claims and appeals
Third party damages
A person can claim damages in the district court for losses suffered from an agreement that unreasonably restricts competition, unless the defendants prove that the violation was neither intentional nor negligent. When the amount of damages is difficult to prove, the court can award an amount of damages on the basis of the overall evidence in the proceedings. Both follow-on actions (based on a regulator's decision) and stand-alone actions (where there is no prior infringement decision) can be brought.
Actions can be brought in civil courts. There are no different procedures for follow-on and stand-alone damage actions. An action must be brought within either three years from the date on which the injured party becomes aware of the damage and the identity of the person who caused it or ten years from the time when the act was committed, whichever occurs earlier. The KFTC's decisions are not binding on the court.
No class actions are permitted for unlawful restrictive agreements or practices.
Rights of appeal and procedure
Any party engaged in a merger can file an appeal with the KFTC or Seoul High Court if dissatisfied with a decision of the KFTC. The appellant must file an appeal with the KFTC within 30 days of receiving the decision being challenged. It can also appeal to the court within 30 days for judicial review. If the appellant is dissatisfied with the result of the KFTC's review on its original decision it can still file an appeal to the court for judicial review within 30 days after receiving the KFTC's decision on the administrative complaint.
Third party rights of appeal
Third parties have no right of appeal.
Monopolies and abuses of market power
Scope of rules
Monopolies and abuse of market power are regulated under the MRFTA, which is enforced by the KFTC. The KFTC Guidelines for reviewing abuse of market dominance, adopted in 2000 and revised in 2002 and 2009:
Define the relevant market.
Determine whether an enterprise is in a dominant position.
Set out the specific factors to be taken into account for each type of abusive behaviour.
As for restrictive practices, the KFTC can impose administrative sanctions and seek criminal prosecution for abuses of market power (see Question 1, Regulatory authority).
Article 2 of the MRFTA defines a market dominant enterprise as a supplier or customer in a particular market that can determine, maintain or change the prices, quantity, quality or other terms and conditions of trade regarding commodities or services, individually or jointly with other enterprises.
When determining if an enterprise has a dominant position in a relevant market, a number of factors must be considered, including:
Existence and extent of market barriers.
Relative size of its competitors.
There are six types of specified abusive behaviours (Article 3-2, MRFTA):
Price abuse (conduct unreasonably determining, maintaining or changing the price of commodities or services).
Output control (conduct unreasonably controlling the sale of commodities or provision of services).
Obstruction of business (conduct unreasonably interfering with the business activities of other enterprises).
Obstruction of new entry (conduct unreasonably obstructing the participation of new competitors).
Exclusion of competitors (conduct unreasonably excluding competitive enterprises).
Infringement of consumer interests (conduct that might considerably harm consumer interests).
Exemptions and exclusions
For general exemptions, see Question 3.
In addition, enterprises with annual turnover or purchases of, within a relevant market, less than KRW4 billion, are excluded from the presumption of being a market dominant company (Article 4, MRFTA).
Companies can ask for guidance from the KFTC as to whether an activity is an abuse of market dominance before the activity takes place (see Question 5, Informal guidance/opinion).
The KFTC's procedure for investigations, the rights of third parties, publicity and whether the KFTC can accept commitments are the same as those for restrictive agreements and practices except for settlements (see Questions 6 to 9).
While the KFTC cannot close cases regarding restrictive agreement or practice without reaching an infringement decision by accepting commitments offered by the suspected parties, the KFTC can close cases regarding monopolies and abuses of market power without reaching an infringement decision by accepting commitments offered by the parties according to the consent decree procedure.
However, if the violation by monopolies or abuses of market power is gross and clear and therefore may substantially suppress competition, the KFTC cannot close cases without reaching an infringement decision.
See Question 10.
Penalties and enforcement
The KFTC can order the market dominant company to:
Discontinue the practice.
Publicly announce the fact that the company received a corrective order by the KFTC.
Take other actions needed for remedies.
Companies are subject to administrative fines in an amount not exceeding 3% of the turnover generated by the sale of the relevant goods or services during the period of a violation. Companies can also be subject to a criminal fine of up to KRW200 million.
Individuals can be subject to either:
Imprisonment of up to three years.
A criminal fine of up to KRW200 million.
Third party damages claims
See Question 15.
The MRFTA treats joint ventures as business combinations that are subject to merger control. A party in the process of becoming the largest investor of a newly established company (or joint venture) must file a merger notification to the KFTC.
However, some joint ventures formed between competitors may be considered unlawful restrictive agreements or practices if the parties intend to carry out the main part of their business by establishing a joint venture (see Question 1, Regulatory framework).
The KFTC co-operates with a number of foreign competition authorities either:
Through co-operation agreements (for example, with Australian, EU, Chinese, Indonesian, Russian, Canadian and Mexican authorities).
Without formal agreements (for example, with the US and Japanese authorities).
The KFTC can (Article 36-2, MRFTA):
Conclude co-operation agreements with foreign governments.
Provide assistance for enforcement activities of foreign competition authorities. This must not infringe South Korean national laws and important national interests.
Support a foreign government's law enforcement activities through reciprocity, even though it may not have signed any co-operation agreement with the foreign government.
The level of co-operation has been limited in the past. However, there has recently been growing co-operation with some countries, particularly in cartel enforcement. For example, the KFTC conducted co-ordinated dawn raids in the Air Cargo and LCD cartel investigations in 2006 as well as the suspected CRT cartel investigation in 2007 and the auto parts cartel investigation in 2013.
Naver, the largest internet portal site in Korea, provided results of internet information search services and specialised services such as knowledge shopping, real estate, movies, books, music, among others, to its users without distinction. Naver also did not clearly distinguish keyword-based advertisements and information search results. The KFTC made a decision to enforce consent decree on the conduct of Naver and finalised a rectification scheme to restore competitive order and a relief scheme to improve user benefits and support for the mutual co-existence of related enterprisers, amounting to KRW100 billion. To restore competitive order, the rectification scheme was finalised specifically to eliminate the possibility of confusion to users and to abolish or delete systems or contracts that have the potential to cause any problem.
Proposals for reform
Korea Fair Trade Commission (KFTC)
Description. The KFTC has an official Korean-language website, which provides up-to-date information on the legislation, rules/guidelines, decisions, policies and organisation of the KFTC and summary of relevant judgments by Korean courts.
KFTC (English version)
Description. The KFTC has an official English-language website, which provides limited or summarised information on the legislation, rules/guidelines, decisions, policies and organisation of the KFTC and summary of relevant judgments by Korean courts. Please note that such information is generally for guidance only and may be potentially out-of-date and limited in scope.
The regulatory authority
Korea Fair Trade Commission (KFTC)
Head. Dae-lae Noh (Chairman)
Outline structure. The KFTC employs more than 500 people. The KFTC consists of the following:
The Commission (the decision-making body). This consists of nine commissioners who deliberate and make decisions on competition and consumer protection issues.
A secretariat (the working body). This is directly involved in:
drafting and promoting competition policies;
investigating anti-trust issues and presenting them to the Commission; and
handling the issues in line with the Commission's decision.
Responsibilities. The KFTC has four main responsibilities:
Strengthening consumers' rights.
Creating a competitive environment for small- and medium-sized companies.
Restraining concentration of economic power.
The KFTC enforces nine laws including the MRFTA. It formulates and administers competition policies, and deliberates, decides and handles anti-trust cases.
Procedure for obtaining documents. Most of the KFTC's statutes, guidelines, policies, official decisions and other documents are available on its website. It is also possible to access some internal documents under the Public Information Disclosure Act of Korea. Request for such information can be made through the KFTC website.
Jae Young Kim
Yoon & Yang LLC
Professional qualifications. South Korea, 1992; New York, United States, 2004
Areas of practice. Anti-trust and competition; M&A; general corporate; corporate restructuring; international contracts; foreign investment; licensing; financial regulation.
Representing a leading multinational heavy duty commercial vehicle company in the international heavy duty commercial vehicle (truck) cartel investigation by the KFTC.
Representing a leading multinational wireless telecommunications component company in the abuse of dominance investigation by the KFTC.
Representing a leading multinational CRT/TFT-LCD manufacturer in the international CRT and TFT-LCD cartel investigations by the KFTC.
Representing a leading multinational marine hose manufacturer in the international marine hose cartel investigation by the KFTC.
Representing a leading multinational air carrier in the international air cargo cartel investigation by the KFTC.
Representing a leading multinational chemical company in acquiring a competitor's shares and related merger filing in Korea.
Languages. Korean, English
Professional associations/memberships. Lecturer, Korea Productivity Center, Antitrust Law; Awarded Commendation from the Chairman of the Korea Fair Trade Commission.
Immunity, Sanctions, Settlements, the Know-how section of Global Competition Review, 2014.
Cartels and Private Litigation, Korean Bar Association, 2012.
South Korea Chapter, Practical Law Cross-border Competition and Cartel Leniency Multi-jurisdictional Guide (co-author), Thomson Reuters, 2008, 2009, 2010, 2011, 2012, 2013.
Commentary on the Case concerning Cartels by Four Toilet Tissue Manufacturers, the Korea Fair Trade Commission, 2011.
Commentary on the Case concerning Predatory Pricing by Hyundai Information Technology, the Korea Fair Trade Commission, 2011.
Cooperation Obligations of Leniency Applicants, the Korea Competition Forum, 2010.
Seoul High Court Rejects Multiple Regression Method in a Follow-on Cartel Damages Litigation (co-author), International Law Office, 2010.
The Korea Fair Trade Commission Amends the Notification on Implementation of Leniency Program, International Law Office, 2009.
Consumer Complaints Management System, the Korea Fair Trade Commission (co-author), 2005.
South Korea Streamlines REITs Act, Asialaw, 2004.
Korea Amended Securities and Exchange Act, Asialaw, 2004.
Economic Analysis on Antitrust Cases, Fair Competition, 2002.
Standard of Unreasonableness in International Contract Notice of Korea Fair Trade Commission, Law Research Institute at Seoul National University, 1996.
Paul S Rhee
Yoon & Yang LLC
Professional qualifications. Connecticut, United States, 1997; District of Columbia, United States, 1998
Areas of practice. Anti-trust and competition; M&A.
Representing a leading multinational elevator manufacturer's Korean subsidiary in follow-on damage action filed by a major customer for damages incurred from a domestic elevator cartel.
Representing a leading multinational machine component manufacturer's Korean subsidiary in a cartel investigation.
Representing a leading multinational IT company in a merger filing for acquisition of mobile device business of another leading multinational IT company.
Representing a leading multinational chemical manufacturer in a merger filing for the establishment of a joint venture company with another leading multinational chemical manufacturer.
Representing a leading multinational airline in a follow-on damage action filed by a major customer for damages incurred from an international air cargo cartel.
Languages. Korean, English
Professional associations/memberships. American Bar Association (Section of Antitrust Law); Connecticut Bar Association; District of Columbia Bar Association.
Know-How Private Antitrust Litigation – Korea, Global Competition Review (co-author), 2014.
South Korea: Cartels and its Aftermath, The American Lawyer (co-author), May 2014.
South Korea Section, LexisNexis UK's LexisPSL Practice Note on Competition (International Cartel Enforcement & Merger Control) (co-author), 2012, 2013, 2014.
South Korea Chapter, Practical Law Cross-border Competition and Cartel Leniency Multi-jurisdictional Guide (co-author), Thomson Reuters, 2008, 2009, 2010, 2011, 2012, 2013, 2014.
South Korea Chapter, Global Legal Group's International Comparative Legal Guide to: Cartels & Leniency (co-author), 2010, 2011, 2012, 2013, 2014.
LexisNexis UK's Doing Business in Korea (co-author), 2013, 2014.
Overlapping Regulations by Sector-specific Regulators and the Competition Authority in South Korean Telecommunications and Financial Industries, CUTS Centre for Competition, Investment & Economic Regulation (co-author), November 2013.
South Korea Chapter, Practical Law Cross-border Mergers & Acquisitions Multi-jurisdictional Guide (co-author), Thomson Reuters, 2009, 2010, 2011, 2012/2013.
Korean Antitrust Regulations, South Korea Chapter, The Guide to Competition and Antitrust, International Financial Law Review (co-author), 2008, 2009, 2010.