공정거래법상 자진신고 감면제도에 관한 법적 소고

Abstract

An unfair collaborative acts (hereinafter “Cartel”) is the object of regulation because it disturbs a market order and damages both consumers and enterprisers. However, It is difficult to find direct evidence to prove it because a cartel is performed privately in the nature of the act. That is why Monopoly Regulation and Fair Trade Act (hereinafter “the Act”) allows voluntary reports to get corrective measures or the penalty surcharge imposed by Fair Trade Commission (hereinafter “the Commission“) be mitigated or exempted, or the complaint filed be exempted (hereinafter “Leniency”). Despite the criticism that it is contrary to the notion of justice, it is considered that Leniency is the best way to obtain evidence to prove a cartel, the existence of the cartel itself as well. Since Leniency is to elicit crucial evidence directly from wrongdoers involved in a Cartel, the Commission is able to obtain better and more evidence of the Cartel in a shorter period of time. This ultimately reduces the time and effort of the competition authorities, enabling efficient enforcement. Each countries has a different status on whether the second whistle-blower should be covered by the Leniency. Obviously, in the case of including the second one, it is necessary to consider the purpose of Leniency to prosecute and to deter a Cartel. As we can see many other regulatory systems, Leniency might be abused as a means of lowering or eliminating the level of sanctions rather than self-reflection by enterprisers. To prevent them from abusing Leniency, the Act is not allowed the benefits of exemption in some cases. For Leniency, an enterpriser shall cooperate with the Commission in investigating the Cartel by submitting the evidence to prove their Cartel including not to discard related data. Recently, Supreme Court of Korea (hereinafter “the Court”) supported the Commission holding that an enterpriser violated its duty of submitting evidence and cooperating with the Commission by destroying data which might be critical evidence to prove the Cartel by formatting their computer system. Leniency should be operated in consideration of the purpose of the system of prevention and deterrence of Cartel, and it should not be allowed to those who abuse it with an intention to merely avoid sanctions. Therefore, the decision of the Court is reasonable. By the way, considering the purpose of the Leniency is to deter or to prevent Cartel, if it is done in the late reflection of the wrongdoer concerned and the will to actively cooperate with the Commission’s investigation, the Commission's discretion should be required to adjust the level of sanctions, even if the Leniency is made after the destruction of the evidence.