묵시적 합의의 증명과 입증도에 관한 소고

Abstract

It is not easy for the plaintiffs to deny the existence of agreement between undertakings in cartel cases if there are direct evidences, such as written documents, recorded conversation of executives and leniency applicant’s testimony. So, chiefly when a tacit agreement exists the plaintiffs in cartel cases may deny the existence of agreement. The Supreme Court has mainly ruled that the Fair Trade Commission(‘FTA’) has to prove the meeting of minds between undertakings as well as parallel behavior in order to recognize the existence of unfair collaborative acts. In my opinion, it would be better to say that the FTC has to prove plus factors as well as parallel behavior between undertakings in order to recognize the existence of tacit agreement. There is a decision of the Supreme Court similar to my opinion. When undertakings fix prices in the oligopolistic market, they do not necessarily raise prices together. Parallel behavior may be recognized although prices are gradually increased or decreased and the increase or decrease rate is somewhat different. It seems that limiting the scope of parallel behavior reasonably represents the theory of interdependence in the oligopolistic market. Plus factors need to be superior qualitatively as well as abundant quantitatively. Even if there is parallel behavior between undertakings and are continuous meetings through some kinds of organization or trade association for a considerable period of time, it is not enough to recognize the tacit agreement for the very reason. In order to recognize it, additional evidences are required, for example, concrete conversation about price-fixing during the meetings, systematic exchange of information on price, etc. The standard of burden of proof for the FTC in cartel cases might be similar to civil cases. It is suggested that the court decide whether there is a tacit agreement for each case independently being aware of the risk of excessive enforcement from recognizing it too easily.