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Criminal penalties for cartels began under Article 1 of the U.S. Sherman Act of which legislative intent was a response to strong antipathy against cartels and monopolies at the time it was enacted. Under these circumstances, the so-called 'conspiracy-centered approach' was adopted. Specifically, it constitutes an ‘agreement’ oriented component that does not take into account strong criminal penalties, including imprisonment, as a result of its implementation without exception.

On the other hand, the EU's background for establishing competition laws differs from that of the United States. In other words, the competition law of the EU, backed by insufficient experience of moral criticism of cartels, adopts an administrative regulatory approach centered on specific regulatory authorities to determine whether an agreement is prohibited by combining the "effects of the results" with the agreement itself. Penalties and administrative punishments are imposed through enforcement measures.

In the 1990s, social awareness of international cartels and the number of confessions to U.S. generous programs increased, resulting in the introduction and strengthening of criminal sanctions against cartels to improve the effectiveness of the regulations. Currently, 12 EU member states enforce criminal sanctions against cartels, while other states, such as Canada, Australia, Brazil, Israel, Mexico, and South Korea, are imposing criminal sanctions. Many of these countries have adopted or strengthened them through legal revisions since the 2000s, showing a distinct tendency toward so-called “criminalization.” In South Korea, this trend is evident along with discussions on the abolition of the KFTC’s exclusive right to the referral of antitrust violations.

In South Korea, the exclusive right of referral of antitrust violations can be understood as an institutional mechanism that allows criminal sanctions in a consistent manner within the framework of administrative laws and regulations and mitigates legal and procedural problems arising from them. In other words, independent regulators with experience in the Fair Trade Law have suppressed problems arising from both administrative and criminal enforcement by judging whether criminal enforcement is acceptable. In particular, the criminal prosecution of an individual has been supported because it is regarded as promoting the deterrent effect without due consideration of its legal implications. In addition, critical reviews from the viewpoint of criminal law, such as the issue of avoiding ambiguity and legality of the subject matter, cannot be omitted. Accordingly, it is highly likely that the recent discussions on the abolition of the right to referral will bring about a major change in the current cartel execution, that, among other things, the criminal procedure of administrative procedures cannot rule out the possibility of fundamental shifts of the relationship between the regulators and undertakings under the competition law. Moreover, the benefits of promoting the deterrent effect may be meaningless due to an increase in costs of criminal proceedings.