1.

Unfair Solicitation of Customers
 

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The Proposed Amendment adds “filing a patent lawsuit against a competitor without a reasonable cause and using it in business activities to solicit customers of the competitor” as an example of illegal conduct, in light of recent KFTC decisions and court rulings.

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This newly added conduct is regarded as an unfair means of competition and can be regulated without proving anti-competitive effects in the relevant market.
 

2.

Abuse of Superior Bargaining Position
 

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The Proposed Amendment provides that while a continuous business relationship is a factor considered when determining a company’s superior bargaining position, a superior bargaining position may also be recognized in one-time transactions if the counterparty cannot freely disengage from the business relationship. This amendment is in light of a recent court ruling, which held that the essence of a superior bargaining position lies in one party’s dependence on the other party in transactions and that a continuous business relationship, in and of itself, cannot be considered an independent criterion.

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In furtherance of the court ruling, the Proposed Amendment clarifies that a superior bargaining position may be recognized even in one-time transactions if dependency of one party on the other party in transactions can be established.
 

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The Proposed Amendment provides that when determining the illegality of a conduct alleged to be management interference, a conduct necessary for achieving the objectives of domestic and foreign export-related laws or complying with global supply chain ESG regulations may not constitute an illegal conduct and that the appropriateness of the means taken and the availability of alternative methods must be considered.

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Even under the current regulations, actions such as requesting materials to comply with ESG regulations are unlikely to constitute unfair management interference, but the intent of the Proposed Amendment is to explicitly state it in the Guidelines to resolve any legal ambiguities for companies.
 

3.

Interference with Business Activities
 

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The Proposed Amendment introduces a new clause specifying that in determining whether business activities are substantially hindered, which is a criterion for assessing the illegality of improper use of technology, the decrease in sales or number of business partners does not need to be considered in cases where there are no sales due to the business being in its initial stage or there is a high sales volatility due to the nature of the business.

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This amendment is designed to improve the effectiveness of regulations on improper use of technology by reflecting the characteristics of certain businesses that may not generate sales in their early stages or have a high sales volatility, such as startups.
 

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In line with the amendment to the Enforcement Decree of the FTL, the Proposed Amendment revises the wording used to assess the degree of difficulty in business activities, from “extremely” difficult to “considerably” difficult, under the criteria for determining illegality of a conduct alleged to be interference with business activities.