Analysis of the Korea Fair Trade Commission’s Jurisdiction over Joint Conduct Permitted by Other Laws—with a Review of the Seoul High Court Decision 2022Nu43742

Abstract

This article critically examines the Seoul High Court decision on liner shipping companies’ joint conduct permitted by the Korean Marine Transportation Act (MTA) and presents the following points. First, the Korea Fair Trade Commission’s (KFTC) authority over joint conduct can be impliedly excluded, even without a special provision stipulating that the Monopoly Regulation and Fair Trade Act (MRFTA) does not apply to certain joint conduct. Second, the MRFTA’s Article 116, which exempts legitimate conduct under other laws from the application of the MRFTA, applies to a limited scope, in which the KFTC is allowed to intervene to address unfair joint conduct through pre-consultation procedures or remedial measures. The KFTC is not superior to other agencies governing such laws permitting joint conduct. It cannot override another agency’s regulatory determination if the legislature intends to grant that agency exclusive authority over joint conduct supported by various investigative and remedial powers. Third, it is reasonable to interpret that the Ministry of Oceans and Fisheries (MOF) has the sole authority to dispose of the unlawful joint conduct of liner shipping companies, independent of the MRFTA’s Article 116. The MTA provides the MOF with extensive power to investigate and take measures for the joint conduct of liner shipping companies, a design that reflects the legislature’s deliberate intent. The KFTC should follow what Korean law states. It should persuade the legislature to amend relevant provisions if the KFTC believes that it must have separate authority to regulate liner shipping companies’ joint conduct.