부당한 共同行爲 推定事件의 재조명

Abstract

In this article, the author reviews the provision of presumption of collusion under the Monopoly Regulation and Fair Trade Act (“MRFTA”) and suggests how to overcome the underlying issues raised by the provision. Part I addresses legislative policy on cartel regulation under the MRFTA. Part II examines the provision of presumption of collusion under the MRFTA, which was adopted in the amendment of the Act in 1999 to effectively attack tacit collusion. Then, it points out the possibility of harsh result on alleged cartel participants in a cartel case due to the presumption provision. While noting that it would be inappropriate to amend this provision because of such possibility and limit the application of it substantially, this article focuses its discussion on how to exercise the presumption provision properly, thereby avoiding punishing innocent “violators” under the MRFTA. Part III compares the relevant clauses to presumption of collusion, section 19 clauses 1 and 5 of the MRFTA, in analyzing the presumption provision of the law. Part IV further discusses the issue of “restraint of competition” in cartel cases where the presumption provision is applied. Part V analyzes a recent decision by the Korean Fair Trade Commission (“KFTC”) in which the presumption provision was applied to a cartel among ten apartment construction companies fixing the price of condominium apartments. As a conclusion, Part VI reviews two requirements set out in recent KFTC’s cases for collusion to be presumed under the MRFTA, and proposes that respondents or defendants in alleged cartels of tacit collusion should be allowed to argue justifications before the KFTC so as to relieve innocent “violators” by applying the presumption provision of the Act.