不當한 共同行爲(카르텔)의 成立要件

The Monopoly Regulation and Fair Trade Act prohibits improper concerted act(so called "cartel") under Article 19(1). It prescribes that no enterpriser shall agree with other enterprisers by contract, agreement, resolution, or any other means to engage jointly in any of the enumerated acts or let others engage in such kinds of activities that unfairly restrict competition. Under this provision, improper cartels are required 3 critical elements ; (1) any kinds of act under items 1-9 of clause(1) article 19, (2) any agreement of two or more enterprisers, (3) substantial restriction of competition in a particular business area. However, these requirements are controversial to apply because of their unclear expression. Among other things, the most important issue is that how the explicit or implicit agreement can be proved. It is not easy to find the direct evidence of agreement, so, in many cases, the court and the Commission seek to prove the agreement through circumstantial evidences. The Act presumes to have committed an unfair collaborative act despite the absence of an explicit agreement to engage in such act if two or more enterprisers commit any of the acts listed in Clause (1). On the other hand, this provision is criticized too be harsh to enterprisers so the Supreme Court has ruled this presumption can be reversed by independent act, unavoidable consistence of act and so on. Judgment of improper restriction of competition is also hard to be proved. So the Commission established the standard of collaborative act and tries to prove this act. This standard divides the improper cartels into hardcore cartel and softcore cartel, and hardcore cartel is treated as per-se illegal. However, hardcore cartel can not be deemed illegal without examination of restriction of competition. Rather, it would be decided under comprehensive review between effects of restriction of competition and effectiveness.