부당공동행위의 일부 기간에 대한 리니언시(Leniency) - 대법원 2010. 6. 30. 선고 2010두28915 판결 -

Abstract

Cartels cause a market distortion, and have an extremely negative impact on the national economy as well as on firms and consumers. Leniency program was introduced in 1997 as a means of effective cartel detection. According to a study on the economic effects of leniency program, this program has contributed to the deterrence of cartel formation, the increase of the probability of detection, and the decrease in time and costs associated with cartel investigation. However, if participating firms reached successive cartel agreements for different periods of time during the existence of a cartel, whether to recognize a partial leniency for each of these periods can be an issue. For example,suppose that there was a cartel from 2000 to 2010, and firm A had involved in this cartel for the whole ten years but firm B only participated in this cartel from 2000 to 2005 or 2006 to 2010. If firm B is the first leniency applicant and firm A is the second applicant, the issue is whether firm A can have the status of the first applicant for the period that firm B was not the member of the cartel. The Supreme Court has decided on this issue that if firm B is qualified as the first leniency applicant for the entire cartel period, firm A cannot acquire a separate first applicant status for a specific period of time. I think this conclusion is reasonable but there can be other arguments according to the number of cartels or demarcation of the scope of related market. This study will analyze this Supreme Court case and suggest various types of leniency based on the period of cartel to examine whether to allow a separate leniency in each of these types.