1.

Progress of Discussions on Attorney-Client Privilege (ACP)

ACP allows clients to keep confidential any discussions or exchanges with their lawyers, including related documents. This principle is rooted in the constitutional right to legal assistance, giving clients the freedom to seek legal advice and ensuring that their right to a proper defense is protected during legal proceedings. ACP is already well-established and widely used in major jurisdictions such as the United States, the European Union, the United Kingdom, and Japan.

In Korea, however, ACP has not yet been adopted into law, despite ongoing discussions over the years. Courts in Korea currently do not fully recognize ACP in all cases. Concerns have been raised, especially in the context of investigations by the Korea Fair Trade Commission (the “KFTC”) under the Monopoly Regulation and Fair Trade Act (the “Fair Trade Act”). Critics worry that ACP could be misused to classify unfavorable evidence as privileged, making it harder to uncover the truth. Others point out the inconsistency of introducing ACP specifically for competition law cases, when it is not fully recognized in general criminal procedures.

On the other hand, strong arguments have been made in favor of ACP. Supporters note that, even under the Fair Trade Act, investigators are supposed to limit their inquiries to what is strictly necessary—helping protect the right to defense. They also argue that if information shared with a lawyer for legal advice could later be used against the client, people may be discouraged from fully consulting their counsel. This outcome would ultimately undermine the constitutionally protected right to legal assistance.

In April 2023, the KFTC updated its “Rules on Investigation Procedures” (KFTC Notification No. 2023-11), adding Article 11(2). This new rule generally excludes compliance departments from investigations, except in certain situations (see full text below). However, this is only an internal guideline for how the KFTC selects its investigation targets. It does not constitute legal recognition of ACP. Furthermore, the rule allows for broad exceptions—including when the compliance department is directly involved in suspected violations—so its effect in fully protecting the right to defense remains limited.

Several bills to introduce ACP are currently being considered in the National Assembly. Notably, the “Partial Amendment to the Monopoly Regulation and Fair Trade Act,” which was proposed in June 2025, aims to add a new Article 83(2) to the Fair Trade Act. With a few limited exceptions, this new provision would prevent KFTC investigators from demanding the disclosure, submission, or inspection of confidential communications between an attorney and their client under investigation, as well as documents received by the attorney from the client or prepared by the attorney (see full text below). If any evidence is collected in violation of these rules, it would be treated as illegally obtained and could not be used in trials, administrative proceedings, or similar legal processes.

While these bills are still being reviewed in the National Assembly, it will be important to keep an eye on whether the Joint Fact Sheet leads to deeper discussions and speeds up the legislative process.
 

2.

Outlook and Implications

If ACP is introduced into Korea’s fair trade laws following the recent Korea-US announcement, companies operating in Korea will have stronger rights to receive legal counsel and defend themselves. This change is likely to bring significant updates to how the competition authority investigates and handles cases, with new procedures and practices to ensure that these rights are properly protected. However, the details of how ACP will be implemented in Korea remain uncertain for now. The final scope and form will depend not only on the progress of key bills currently being considered in the National Assembly, but also on ongoing policy reviews by the KFTC. As such, it will be important to pay close attention to how these discussions evolve.

Since the adoption of ACP could have a major impact on compliance practices, companies should stay up to date and regularly check for new developments on this front. If ACP is ultimately introduced, it will be crucial to carefully review the specifics of the new system and to look to international best practices when designing protocols that suit Korea’s legal and regulatory landscape. Furthermore, businesses should closely watch how these changes might affect future investigations and decision-making processes at the KFTC.
 

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