국제카르텔 자진신고자 감면제도 집행의 문제점과 개선방향
Problems of Leniency Programs in International Cartels and the Direction to Improve the Programs
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The leniency program pursues two purposes. First, it is designed to increase the number of renegades from an existing cartel. Second, it could discourage a new cartel. When a trend of strong penalty and enforcement against a cartel is considered, the leniency program is a strategy of “carrots and sticks.” The spread of leniency programs in the world over the last two decades is interpreted as a positive phenomenon since it shows competition agencies’ strong volition to punish cartels. However, regulations on international cartels whose effect is not limited to one jurisdiction are not unified. In addition, such regulations on international cartels are not sufficient, when considering potentially huge impacts of international cartels on the world economy. Leniency programs in international cartels have inherently many difficulties in practice due to different legal systems and enforcement mechanisms across countries and complications in international cartels. In addition, it is possible that the current situation could be more complicated when more countries adopt leniency programs. Moreover, leniency applications simultaneously taking place in many countries can create more risky uncertainties towards all of cartel members including a whistle-blower. In particular, protection of secrete about materials and information on leniency application can work as a factor discouraging a business entity from report voluntarily in the first place. Accordingly, the current trend is to recommend cautiously voluntary report rather than first voluntary report. Since international cartels are difficult to detect and enforce, it is necessary that policy-makers and competition agencies emphasize international coordination more for the effective regulations. It is not because it is good that entities involved in unjust cartels receive benefits, but because it is recommended to establish unified and effective leniency programs. Competition agencies in the world understand that the best way to regulate international cartels is to manage harmonious systems that minimize conflicts among countries. However, as markets in the world are integrated, more organized and unified enforcement of competition law. It does not suffice to regulate international cartels by idealistic arguments based on mere “harmony and cooperation.” In the long run, it is desirable to establish internationally unified system of leniency programs which are managed in a stable way and in which matters are solved in a quick way. To this end, it is necessary to form a social consensus to foment voluntary reports and to make an international system which could be used by member countries.
Abstract
The leniency program pursues two purposes. First, it is designed to increase the number of renegades from an existing cartel. Second, it could discourage a new cartel. When a trend of strong penalty and enforcement against a cartel is considered, the leniency program is a strategy of “carrots and sticks.” The spread of leniency programs in the world over the last two decades is interpreted as a positive phenomenon since it shows competition agencies’ strong volition to punish cartels. However, regulations on international cartels whose effect is not limited to one jurisdiction are not unified. In addition, such regulations on international cartels are not sufficient, when considering potentially huge impacts of international cartels on the world economy. Leniency programs in international cartels have inherently many difficulties in practice due to different legal systems and enforcement mechanisms across countries and complications in international cartels. In addition, it is possible that the current situation could be more complicated when more countries adopt leniency programs. Moreover, leniency applications simultaneously taking place in many countries can create more risky uncertainties towards all of cartel members including a whistle-blower. In particular, protection of secrete about materials and information on leniency application can work as a factor discouraging a business entity from report voluntarily in the first place. Accordingly, the current trend is to recommend cautiously voluntary report rather than first voluntary report. Since international cartels are difficult to detect and enforce, it is necessary that policy-makers and competition agencies emphasize international coordination more for the effective regulations. It is not because it is good that entities involved in unjust cartels receive benefits, but because it is recommended to establish unified and effective leniency programs. Competition agencies in the world understand that the best way to regulate international cartels is to manage harmonious systems that minimize conflicts among countries. However, as markets in the world are integrated, more organized and unified enforcement of competition law. It does not suffice to regulate international cartels by idealistic arguments based on mere “harmony and cooperation.” In the long run, it is desirable to establish internationally unified system of leniency programs which are managed in a stable way and in which matters are solved in a quick way. To this end, it is necessary to form a social consensus to foment voluntary reports and to make an international system which could be used by member countries.
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