공동행위 인가제도

Abstract

The cartel authorization system is an ex-ante system wherein improper cartels, which are prohibited as a rule, are exceptionally allowed in advance if they satisfy the specified requirements. As some cartel activities may be partially allowed during an economic recession, there are opinions that it is necessary to authorize certain cartels in light of the recent economic situation. This paper attempts to present the ways to improve the current cartel authorization system of the KFTC by examining the history, details and cases of the system and then comparing with those of foreign countries such as the US, EU, Japan and Germany. In Korea, the cartel authorization system was introduced on April 1, 1987 replacing the previous cartel registration system which entered into April 1, 1981. According to the system, a cartel may be authorized in advance if it satisfies certain requirements such as industrial rationalization, research and technology development, overcoming economic depression, industrial restructuring, improving competitiveness of small- and medium-sized enterprises, and rationalization of trade terms and conditions. Since 1981, a total of 7 cases of cartels and 138 cases of prohibited practices of associations of enterprises were registered or authorized. All of them were terminated as of July 31, 1997, and no more cartels were allowed thereafter. In the US, there’s no such a system as cartel authorization but in some cases, if necessary, it allows a cartel by individual laws. Similarly, EU does not have any cartel authorization system; note, however, that it can exempt a cartel from the cartel regulation if it satisfies the specified requirements. Also, there’s a so called “Block Exemption” that stipulates exemption areas in advance in individual laws. Japan had a system of authorizing recession cartels and rationalization cartels; stricter standards needed to be satisfied when allowing a price cartel as a type of recession cartel. During the period from 1955 to 1998, Japan allowed 72 cases of recession cartels and 199 cases of rationalization cartels. However, the system was abolished in 1999. Similarly, Germany abolished its cartel authorization system in 2005. Currently, Germany maintains only a regulation on general exceptions of competition law and a regulation on allowing cartels for small- and medium-sized enterprises similar to those of EU. In Korea, opinions to abolish the cartel authorization system and opinions to actively use the system both exist. This paper presents the following as ways to improve the current system based on our experiences to date and the examples in foreign countries. First, the cartel authorization system should be used in limited range to a minimum level considering the type, details, period, participants, and related forward or backward industries of the cartel. Second, abolishing the cartel authorization system should be carefully examined. Since problems may arise if new alternatives - using individual laws as the basis for allowing cartels or inserting a new comprehensive article in the Monopoly Regulation and Fair Trade Act - are adopted, it should be carefully reviewed. Third, it is necessary to examine the idea of easing cartel authorization requirements for the soft cartels carrying both anti-competitive and efficiency enhancing effects, along with reducing the current 6 types of requirements to approximately 3 types.