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Information Exchange as a Type of Agreement?

김미정|윤신승|Kenneth T.Kim
아시아태평양법연구소 (Asia Pacific Law Institute)|2015.12|Journal of Korean Law|제15권 제1호|pp. 33-56|DOI 10.23110/jkl.2015.15.1.003

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키워드

AgreementCartelInformation exchangeUnreasonable collaborative actsConcerted prac-ticesLife Insurer Case

초록

Article 19(1) of the Monopoly Regulation and Fair Trade Act prescribes that an anticompetitive “agreement” among enterprisers exists as a requirement for establishing an unreasonable col-laborative act. The requirements and standards that are necessary for finding the existence of an “agreement” based on information exchange as evidentiary grounds when there is an in-formation exchange without any explicit agreement or direct evidence has become a critical legal issue in Korea While lower courts previously provided legal standards in regard to such issue, in July 2014, for the first time the Korean Supreme Court rendered a landmark decision regarding the re-quirements and determination standards for finding information exchange among competitors as an agreement in the case concerning information exchange by sixteen life insurance compa-nies. In the above case, the Korean Supreme Court held that (i) under the MRFTA the existence of an unreasonable collaborative act was not directly established based solely on the existence of information exchange, although information exchange can be used as compelling evidence in finding reciprocity in meeting of the minds among enterprisers and (ii) in such case, the exist-ence of an agreement has to be established by comprehensively considering the totality of cir-cumstances, such as the structure and special characteristics of the relevant market and the na-ture and details of the exchanged information, etc. In sum, it may be viewed that courts in Korea continue to develop an autonomous theory of interpretation in order to regulate information exchange as an unreasonable collaborative act, while not damaging the significance of the existence of an “agreement” under the current MRFTA regime.

Abstract

Article 19(1) of the Monopoly Regulation and Fair Trade Act prescribes that an anticompetitive “agreement” among enterprisers exists as a requirement for establishing an unreasonable col-laborative act. The requirements and standards that are necessary for finding the existence of an “agreement” based on information exchange as evidentiary grounds when there is an in-formation exchange without any explicit agreement or direct evidence has become a critical legal issue in Korea While lower courts previously provided legal standards in regard to such issue, in July 2014, for the first time the Korean Supreme Court rendered a landmark decision regarding the re-quirements and determination standards for finding information exchange among competitors as an agreement in the case concerning information exchange by sixteen life insurance compa-nies. In the above case, the Korean Supreme Court held that (i) under the MRFTA the existence of an unreasonable collaborative act was not directly established based solely on the existence of information exchange, although information exchange can be used as compelling evidence in finding reciprocity in meeting of the minds among enterprisers and (ii) in such case, the exist-ence of an agreement has to be established by comprehensively considering the totality of cir-cumstances, such as the structure and special characteristics of the relevant market and the na-ture and details of the exchanged information, etc. In sum, it may be viewed that courts in Korea continue to develop an autonomous theory of interpretation in order to regulate information exchange as an unreasonable collaborative act, while not damaging the significance of the existence of an “agreement” under the current MRFTA regime.

참고문헌 (42)

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  42. Improvement Proposal for Effective Regulation of Cartel Perpetrated by Information Exchange, "Kang Jiwon", National Assembly Research Service, 58~, pp.No. 277 (2015)

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