The Latest Criminal Antitrust Enforcement Trends in Korea

May 14, 2020

Currently, antitrust laws in Korea provides that the Prosecutor’s Office may only bring criminal charges for antitrust violations when the Korea Fair Trade Commission (the “KFTC”) issues a criminal complaint to the Prosecutor’s Office. However, the Prosecutor’s Office has been actively enforcing the antitrust laws, especially in hard-core cartel cases since the creation of a specialized antitrust division within the Prosecutor’s Office in 2015. Since then, the Prosecutor’s Office has been investigating major antitrust violations independently from the investigations conducted by the KFTC. Therefore, Korea’s National Assembly is considering an amendment to the MRFTA that would abolish the KFTC’s exclusive right to criminal referral with respect to certain violations of the MRFTA, including the hard-core cartel cases.

Keeping up with such a trend, the Prosecutor’s office devised antitrust-investigation guidelines (the “Guideline”) for criminal prosecution in cartel cases, which came into effect this year. The Guideline includes a criminal leniency program, which clarifies the discretion exercisable by the Prosecutor’s Office to grant exemption from or mitigate sentences for leniency applicants who cooperate with cartel investigations in good faith. It also lays down the rules for the leniency program, which would enable applicants to avoid compulsory search and seizure, among other things. Although the leniency program is similar to that of the KFTC, it also differs in certain aspects that the leniency program of the Prosecutor’s Office also applies to individual leniency applicants

The Prosecutor’s Office has further clarified its intent to more actively investigate violations of Korea’s antitrust laws and publicized the existence of its own criminal leniency program. Furthermore, it is understood that the Prosecutor’s Office is hoping to finalize a memorandum of understanding (“MOU”) with the Antitrust Division of the US Department of Justice (“US DOJ”) before the end of this year. While the exact details of the MOU between the US DOJ and the Prosecutor’s Office are unknown, it is likely to contain provisions on how two agencies would cooperate in certain cartel cases. Entering into such MOU suggests that the Prosecutor’s Office intends to more actively investigate the international cartel cases in the future.

It is therefore recommended, that companies doing business in Korea review their antitrust compliance policies as they pertain to Korea as well as seek advice from local Korean counsel on how the latest trends could impact their business.

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