합의 증명의 요소로서의 사업자간 의사연결의 상호성

Abstract

This study aims to analyse the concrete meaning of the reciprocity ofconnection of wills among enterprises suggested as an element for proving anagreement by the Supreme Court and the standard for determining itsevidence. The conclusions of this study are summarized as follows:Firstly, as an agreement means concurrence of wills, it does not include thecases in which wills of enterprises comprising the substance to be agreedupon and reciprocity of connection of those cannot be found. In that sense,the conceptional components of an agreement should be the existence ofindividual wills and reciprocal communication of those, and mutualunderstanding. Secondly, though an agreement does not require its execution, particularlyimplicit agreements needs to be inferred from parallel conducts apparentlyexecuting an agreement. For proving an agreement in this situation, plusfactors are needed in addition to parallel conducts, which are expressed as“the circumstances conducive to reciprocity of connection of wills amongenterprises” in the Supreme Court decisions. Thirdly, the factors consisting of the circumstances conducive to reciprocity ofconnection of wills among enterprises can be referenced from lists identifiedfrom the U.S. court decisions. Among the most important factors are thosethat tend to show that the conduct would be in the parties’ self-interest ifthey all agreed to act in the same way. These can also be referred to thefactors about plausible explanations that lie behind the conduct and givegrounds for it. Fourthly, proof of information exchange which is capable of removing uncertainty or facilitating collusion could be an important evidence ofreciprocity of connection of wills. However, whether reciprocity of connectionof wills can be proved varies case by case, because information exchangewould take place without the agreement about the content of informationexchanged. Fifthly, the standard for determining whether information exchange could be aproof to find an agreement about not information exchange itself but maincompetition factors such as price should be distinguished from the standardfor assessing illegality of information exchange. Lastly, Among the consideration factors relating to information exchangesuggested by the Supreme court, objective content of information exchange,its purpose or intention, and process and content of decision-making could bemore importantly considered in the course of determining whether there is anagreement about price fixing. However, these factors should be provenindividually and not be presumed to have an causal connection between anyof those without sufficient empirical data.