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December 9, 2020, the date of the Korean antitrust overhaul first time ever in Korea, was marked by the Korean antitrust community a milestone in the 40-year legislative history of the Monopoly Regulation and Fair Trade Act(“MRFTA”). The New MRFTA is expected to be an effective gap filler, as the amended provisions are likely to cure many, if not all, loopholes existing in the current law. The two most notable gap fillers among the recent amendments will probably be the cartelization of the information exchanges(in substantive law) and the newly introduced injunctive reliefs(in procedural law).

New Article 40 of the MRFTA will fuel the KFTC’s more rigorous law enforcement of the anticompetitive stand-alone information exchanges, freeing the KFTC from the Supreme Court precedents’ narrow interpretation of the meaning of the ‘agreement’ called the “Dogma of ‘Agreement’”. Concerns about false positives and predictability are still lingering, as it is unclear how the KFTC can draw the line between efficient information exchanges conducted as part of daily business activities and disguised form of harmful cartels. The introduction of injunctions under new Article 108 will provide a previously unavailable form of private remedy for antitrust plaintiffs who were left with no institutions to listen to their grievences if the KFTC either dismissed or closed the case with no finding of antitrust violation. An effectiveness of this new injunctive reliefs will depend on, however, further legislations such as introducing discovery tools to cure the parties’information asymmetry and making clearer the permitted boundaries of the court’s orders.

Jiwon Kang
(Legislative Researcher, Ph.D., Attorney at Law)

[Korean Economic Law Review, Vol. 20-1, April 2021]