카르텔 억제를 위한 리니언시제도의 재검토

Abstract

The advent of leniency programs has completely transformed the way antitrustauthorities around world detect, investigate and deter cartels. If companies cannotconfidently predict how an enforcement authority will apply its leniencyprogram, it may ultimately decide against self-reporting and cooperation, andexisting cartels may go unreported and unpunished. Antitrust authorities explorethe efficacy of programs designed to fight cartels. An effective leniency programwill lead cartel members to confess their conduct to authorities even before aninvestigation is opened. The strength of leniency programs comes from the fact that criminal sanctionsprovide the greatest inducement to cooperation. Individuals stand the most tolose and so avoiding jail sentences is the greatest incentive for seeking leniencyprograms. With the goal of employing the more effective use of leniency programs thisstudy proposes that in order to be eligible for such a leniency program, acorporation must be able to prove that it did not coerce another party toparticipate in the activity, and that it was clearly not the leader in, or originatorof the activity. Second, in order to motivate potential whistleblowers to initiate thewhistleblowing process, a marker or conditional leniency letter must be presentedto the applicants. Last, the enactment of immunity from criminal prosecution for leniency applicants who meet the terms of a leniency program must be consistently andreliably upheld. Unquestionably, leniency programs are the most effective investigative toolever designed to deter cartels.