정보교환 담합행위 규율의 변화와 쟁점

Abstract

The overall revision of the Monopoly Regulation and Fair Trade Act (MRFTA) in Korea was passed at the National Assembly plenary session on December 9, 2020, and will be implemented from December 30, 2021. This overall revision is the first in 40 years since the MRFTA was enacted and enforced in 1980. Subordinate statutes such as the enforcement decree of the act on the MRFTA and the public notice are still in the process of being prepared. In addition, as the subordinate statutes are coded, systematized, and enforced, whether the expectations and concerns of the overall revision that have been expressed will eventually be revealed. ‘Information exchange’ is not stipulated as a type of unfair cartel in Article 19, Paragraph 1 under the current MRFTA. Before the overall revision of the MRFTA, there was a limitation in that the Korea Fair Trade Commission (KFTC) had no choice but to dismiss the charges because there was no legal basis for doing so. Also, the court's attitude was generally strict in recognizing an agreement of information exchange. In this regard, the KFTC took into account that information exchange is currently taking place as a form of collusion, and that in the case of significant jurisdictions such as the EU and the United States, a system is in place to regulate information exchange as a type of collusion or cartel. To clarify the legal basis for regulating information exchange, the amendment of the law was pursued in Korea. However, there are conflicting views and prospects for changes in the information exchange discipline, including concerns that the pro-competitive effect of these amendments to the law may lead to overregulation of the daily information exchange of business operators. Even if there is no agreement, it is a well-known fact that information exchange may cause concerted practices, such as reducing price deviations by allowing operators to establish interdependent management strategies. Of course, it is necessary to be aware of the side effects of the potential overregulation, which prevents the exchange of information with pro-competitive effects after the enforcement of the law. It should be possible to effectively control anti-competitive behavior while minimizing the negative impact on the market.