A Comparative Study on the Korean and U.S. cartel cases

서지정보

· 발행기관 : 한국부패학회
· 수록지 정보 : 한국부패학회보 / 18권 / 1호 / 259 ~ 283페이지
· 저자명 : 강혜림

초록

Cartels consist of meeting of the minds and concerted actions among companies. While concerted actions can be caught relatively easily, it is hard to figure out whether or not the concerted actions are the result of an agreement. If the concerted actions are coincidental and are not based upon an agreement among companies, the concerted actions cannot be considered illegal in contravention of antitrust law because the core element of an illegal cartel, which is the meeting of the minds among participants in the concerted action, is absent. Considering the difficulties in regulating cartels because of the hardship of proving the existence of the meeting of the minds, the Korean Antitrust Act creates a presumptive agreement among companies when certain types of concerted actions exit under the presumption clause, the Article 19(5).
However, there have been a lot of problems surrounding the presumption clause. First, there is such a problem about invasion of the defendant’s legal interest by transferring the burden of proof. Second, there is confusion in interpreting the presumption clause between Korean Supreme Court and Korean Fair Trade Commission, and Korean Supreme Court and Seoul Appellate Court. Third, the amended Article 19(5) lost its unique characteristic by the added “probability factors” as the presumption clause.
The U.S. Courts have found “plus factors” in cartel cases, and the factors must be the basis for inferring that the concerted action (parallel business conduct) was the result of a preceding agreement. The plus factors which have been repeatedly mentioned by courts are as follows: (i) evidence that the defendant had a motive to enter into an agreement; (ii) evidence that the defendants acted contrary to its interest; (iii) evidence implying a traditional conspiracy; (iv) evidence that the defendants attended secret meetings or conducted suspicious discussions at which they had an opportunity to conspire; (v) evidence that the defendants took a radical departure from previous business practices. According to the U.S. Supreme Court, there is an important distinction between in antitrust cases and other cases as to the standard of inference. This kind of view is attributed to the fact that if the inference about the existence of an agreement from circumstantial evidence is easily permitted even the pro-competitive actions can be deterred. Also, the U.S Supreme Court says that depending on the characteristic of market (either an oligopoly market or a highly concentrated market or a competitive market) the different approach to parallel conduct by firms is needed.
The most distinguishing characteristic of approach as to conscious parallelism between in the Korean and U.S. legal systems is that the Korean antitrust law has statutory clause which presume the existence of agreement when there is evidence of the same conduct by entrepreneurs. That means the Korean antitrust law treats the evidence of the parallel conduct by entrepreneurs differently from other circumstantial evidence, while the U.S. Supreme Court has considered the evidence of parallel conduct as merely one of circumstantial evidence. This kind of difference is related to the strong legislative intent to regulate cartels widespread in the country. However, in contemplation of utility and function of the presumption clause under current circumstances, I argue that the presumption clause should either be abolished or at least be narrowed the scope of application to reduce the negative effects.
Specifically, I will propose to abolish Article 19(5). In the alternatives, if abolishing the presumption clause is premature under Korean market situation and policy concern, I will suggest that the scope of application should be limited into the same price rise case between entrepreneurs, which considered to be almost always per se illegal, and the probability factors listed in the presumption clause should be modify to be more specific. Also, I will propose the higher threshold in inferring an agreement from indirect evidence in antitrust law cases.

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