1.

Unfair Solicitation of Customers

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.

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

First, the Proposed Amendment lowers the criteria for establishing superior bargaining position.

The Proposed Amendment provides that while a continuous business relationship is a factor to be 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. The Proposed Amendment follows 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, by itself, cannot be considered an independent criterion.

The Proposed Amendment also specifies the criteria for determining the illegality of management interference related to compliance with global ESG regulations. In particular, the Proposed Amendment provides that when determining the illegality of conduct alleged to be management interference, measures necessary to achieve the objectives of domestic and foreign export-related laws or comply with global supply chain ESG regulations may not constitute “illegal conduct.” It also provides that to determine illegality, the reasonableness of the means used and the availability of alternative methods must be considered.
 

3.

Interference With Business Activities

The Proposed Amendment updates the criteria for determining the illegality of the improper use of technology to be more in line with real-world circumstances. It introduces a new provision stating that in assessing whether the business activities have become “substantially difficult” – an element in assessing the illegality of improper use of technology – the decrease in sales or the number of business partners may not need to be considered if there are no sales due to business conditions (e.g., the business is in its initial stage) or if there is a high sales volatility due to the nature of the business. This amendment aims to improve the effectiveness of regulations on the improper use of technology by reflecting the characteristics of certain businesses, such as startups, that may not generate sales in their early stages or have a high sales volatility.

Further, in line with the amendment to the Enforcement Decree of the Monopoly Regulation and Fair Trade Act, the Proposed Amendment changes the language used to assess the degree of difficulty in business activities from “extremely” to “substantially” difficult.