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Issues on Cartel Regulation under the Korean Competition Law -Focused on Substantive Law Issues-

  • Journal of Regulation Studies
  • 2010, 19(2), pp.105-136
  • Publisher : 한국규제학회
  • Research Area : Social Science > Public Administration

홍대식 1

1서강대학교

Accredited

ABSTRACT

This article aims to examine legal issues on cartel regulation under the Korean Competition Law focusing on substantive law issues relating to the interpretation and application of the cartel provision. Firstly, regarding the agreement requirement, the Supreme Court has yet to achieve sufficient development of the legal doctrines as standards for clarifying the meaning and scope of the agreement and deciding whether the agreement exists based on circumstantial evidence while it tends to interpret the agreement requirement formally. Secondly, in relation to the illegality requirement, it shows its endeavor to seek concrete and reasonable legal doctrines fit for cases with exceptional or special circumstances by making clear the meaning and standard of anti-competitiveness element and perceiving unreasonableness as separate element. This way of judgment adopted by the court has been attacked from some of the academic world for the reasons of causing the problems of dogmatic approach to the agreement or systemic confusion on the unreasonableness element. However, it is increasingly clearer that the development of legal doctrines on cartel regulation has a certain direction from the standpoint of comprehensive understanding of court cases so far. Therefore, it is regarded that it is time for the parties and interested persons concerned with the cartel regulation to make redoubled efforts to develop more reasonable legal doctrines respecting the purpose of court cases.

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