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Newsletter | April 2015, Issue 1
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ANTITRUST & COMPETITION
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Korea Fair Trade Commission Amends Notification on Mitigation or Exemption of Corrective Measures Against Leniency Applicants of Improper Concerted Acts
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On January 2, 2015, the Korea Fair Trade Commission ("KFTC") promulgated amendments to its Notification on Mitigation or Exemption of Corrective Measures against Leniency Applicants of Improper Concerted Acts ("Notification"). The amended Notification will apply to cases where leniency applications for improper concerted acts are filed on and after January 2, 2015.
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The key features of the amended Notification are as follows:
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Abolition of provisional leniency status
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Under the previous Notification, applicants first received a provisional leniency applicant status from the KFTC Secretary General. Final confirmation of the applicant's status was determined at a hearing by the Commissioners to decide the underlying cartel case.
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The amended Notification eliminates the Secretary General's granting of the provisional leniency applicant status.
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Clarification of evidentiary burden borne by leniency applicants
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Applicants are now required to submit evidence 'necessary to prove the existence of an improper concerted act.' The previous Notification required applicants to meet this requirement by submitting (i) 'direct' evidence, such as written agreements between cartel participants, meeting minutes, and internal reports or (ii) 'narrative' evidence (e.g., employee affidavits and declarations), but only if the applicant confirmed such narrative evidence with supplemental evidence, such as documents, electronic files, and e-mails.
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The amended Notification abolishes the need for leniency applicants to submit supplemental evidence confirming the contents of any submitted narrative evidence to meet its evidentiary burden to secure leniency status.
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Clarification of restrictions on subsequent leniency applicants
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The Enforcement Decree of the Monopoly Regulation and Fair Trade Law prohibits second-place leniency applicants from securing leniency benefits in two situations. First, applicants may not benefit from leniency in two-party cartels if the other party had already applied for leniency. The amended Notification now makes it clear that the relevant date for determining whether the cartel had only two participants is the date on which the cartel terminates. Second, applicants may not benefit from leniency if another cartel participant has already applied for leniency or is otherwise cooperating with the KFTC, and more than two years had passed since the other participant applied for leniency or began cooperating. The amended Notification clarifies that the two-year clock begins to run from the date on which the application for leniency or cooperation is filed with the KFTC.
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