Korea’s competition authority, the Korea Fair Trade

Commission (the “KFTC, has announced a proposal to expand its existing

enforcement authority to the courts and prosecutors through a full-scale

reform of the Monopoly Regulation and Fair

Trade  Act, Korea’s primary competition statute. If

all proposed reforms are passed by the National Assembly as currently drafted,

the impact on the Korean economy and antitrust enforcement will require

companies doing business in Korea to tighten their risk management and

compliance measures, as the scope and penalties of Korean antitrust enforcement

would be broadened.

The following are a few of the proposed reforms that companies

should take into consideration in developing their risk management and

compliance programs for Korea.

Stricter

regulation of information exchange . Currently,

information exchange is not illegal in Korea, unless accompanied by actual collusion

between the exchanging parties. However, the draft bill proposes adoption of a

presumption of collusion if companies exhibit parallel anti-competitive conduct

(whether or not they agreed to act in parallel) and the companies participated

in information exchanges necessary for such parallel conduct. The KFTC has also

proposed to include any “exchange of information on price, production quantity

or other information that substantially limits competition” as a new category

of prohibited (i.e. collusive) conduct.

New

merger filing threshold based on “transaction value” .

Currently, the Korean merger review process only considers the parties’

worldwide and Korean assets/turnover in determining whether a merger filing is required.

However, this may not catch competitively significant transactions such as

acquisitions of start-up companies with significant potential upside but

insufficient assets/turnover to trigger a merger filing. For example, the 2014 Facebook-WhatsApp

merger with approximately 24 trillion Korean Won in consideration was exempt

from Korean merger filing requirements due to Whatsapp’s relatively low Korean

turnover. To address the perceived loophole, the KFTC proposes to amend current

merger control provisions to include a new ‘transaction value’ threshold, so

that mergers which do not meet the current asset/turnover thresholds may still require

notification if the consideration for the merger meets the ‘transaction value’ threshold.

Abolishment

of the KFTC's exclusive criminal referral right .

The KFTC proposes to abolish its exclusive right of referral for criminal

prosecution of “hard core cartel” cases (which accounts for 90% of cartel

cases) such as price-fixing and bid-rigging. This would enable the Prosecutors’

Office to independently investigate and prosecute antitrust violators, which it

currently cannot do without the KFTC’s separate referral. In addition, to reflect

concerns about the effect on leniency applications and potential for overlapping

investigations by the KFTC and the Prosecutors’ Office, the KFTC is working

with the Prosecutor’s Office to amend the existing leniency application process.

For example, while the existing leniency process would primarily remain in

place and the KFTC would remain as the sole channel for leniency applications,

the KFTC would immediately share any leniency-related information with the Prosecutors’

Office.

Increased

administrative fines for antitrust violations. To

respond to criticisms that current administrative fines do not have a

sufficient deterrence effect, the KFTC proposes to uniformly double the ceiling

on administrative fines for all types of antitrust violations. For example, the

administrative fines for cartels, abuse of dominance, and unfair trade practices

will be increased from 10% to 20%, 3% to 6%, and 2% to 4%, of relevant turnover.

Introduction

of private injunctive relief for individuals. Currently,

an individual cannot seek court injunctions against potential competition law

violations. The proposed draft bill allows the right to seek private injunctive

relief from the courts to stop an alleged violation (i.e. unfair trade

practices) which may cause significant harm to an individual.

Reduction

of statutory limitation period for antitrust investigations .

The statutory limitation period for KFTC investigations will be shortened from the

current maximum of 12 years to a maximum of 7 years. However, for cartel cases,

the current statutory limitation period (7 years from termination of cartel

activities, and 5 years from commencement of KFTC investigation) will remain intact,

given the longer period required for cartel investigations.

The KFTC’s resolve to strengthen anti-cartel

enforcement is clearly evident in the reform proposal. The lack of

attorney-client privilege in Korea already makes risk management difficult,

even with effective compliance programs. Accordingly, the fact that mere

information exchange could lead to criminal prosecution is quite controversial.

Moreover, with the proposed introduction of class actions for private

enforcement, and punitive (up to treble) damages to take effect from September

2019, no amount of emphasis on antitrust compliance can be seen as too great.

The final bill for amendment will be presented

to the National Assembly within this final quarter of 2018 and may be further

revised based on review and any follow-up discussions within the National

Assembly.

If you have any questions regarding this

article, please contact below:

Jae Hoon Kim ([email protected])

Hwan Jeong ([email protected])

Genny S. Kim ([email protected])

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