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On the Scope of Antitrust Law in South Korea, the EU and the US

Comparing the Interpretation of ‘Agreement’ and ‘Illegality’

Jung Won Han, Caroline Buts, Tony Joris

DOI https://doi.org/10.21552/core/2018/2/4



The introduction of the Monopoly Regulation and Fair Trade Act in 1980 triggered the development and active enforcement of a competition policy in South Korea. While the aims of this Act are largely in line with those of EU competition law and US antitrust law, striking differences appear regarding the decisions in individual cases. This article presents a comparative analysis of the interpretation of two fundamental concepts in the EU, the US and South Korea: ‘agreement’ and ‘illegality’’. The results of this analysis indicate that the most notable differences are not found in the wording of the law, but rather in its interpretation through case law. The South Korean interpretation of an agreement seems to be substantially narrower than that of its Western counterparts and the analysis is conducted more formalistic. As a result, several types of information exchange that are illegal in the EU and the US, are not prosecuted in Korea as they do not qualify as an agreement. This wide divergence does certainly not contribute to legal certainty for globally active companies and hampers the further development of a healthy competitive market economy in South Korea.

Jung Won Han is an investigator at the Korea Fair Trade Commission (KFTC) and PhD candidate at the Department of Applied Economics of the Vrije Universiteit Brussel (VUB). Caroline Buts is professor at the same Department. Tony Joris is Jean Monnet professor of European Union Law at the Faculty of Law and Criminology (VUB). We thank Professor Philip Sutherland and the participants at the International Symposium on Imperfect Forms of Collusion, organised by Stellenbosch University and Justus-Liebig-Universität Giessen on 12 and 13 January 2018, for their useful comments. The authors remain solely responsible for the views expressed in this article. For correspondence: <mailto:carobuts@vub.be>.

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