부당한 공동행위의 추정

Abstract

The purport of Article 19 (5) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 8631 of August 3, hereinafter ‘the former Act’) is to secure effective regulation as to illegal concerted act by presuming the existence of agreement between entrepreneurs if the Fair Trade Commission proves indirect or circumstantial facts about entrepreneurs' agreement instead of proving it directly due to the hardship of improving illegal concerted act of agreement. Supreme Court's precedents established the interpretation that the Fair Trade Commission needs to prove two indirect facts of “apparent consistency in entrepreneurs' acts under Article 19 of the former Act” and “restriction on competition” for presumption of illegal concerted act and it is not necessary to prove circumstantial fact leading to entrepreneurs' agreement or tacit understanding. However, such presumption of entrepreneurs' agreement may raise risk of viewing conscious parallelism in oligopolistic market as illegal concerted act. Therefore, precedents under the former Act as to presumption provisions apply presumption to conscious parallelism and may result in over-deterrence, and the Supreme Court has applied presumption with flexibility to avoid excessive regulation. Thereafter, Article 19 (5) of the Monopoly Regulation and Fair Trade Act(hereinafter ‘the amended Act’) provides for proof of other circumstantial facts for presumption of entrepreneurs' agreement and burden of proof is enhanced to “considerable degree of feasibility.”Thus, Supreme Court precedent under the former Act may no longer be viable due to the foregoing problem. Existence of entrepreneurs' agreement requires not “high feasibility” but “considerable degree of feasibility”. So, despite amendment of the Act, reversal of presumption continues to be operated with flexibility.