부당공동행위의 공동 자진신고 제도에 관한 관견(管見)

Joint application of leniency was recently introduced to enhance the efficiency of leniency programme aimed at facilitating the exposure of cartels. In implementing the system, it is important to prevent any side effects, as well as being mindful of its policy rationale. In other words, it would be a problem if allowing for joint leniency application were to lead to any neglect of ex post opportunistic behavior to the point of manifestly undermining justice and equity. For this reason, joint application of leniency was acknowledged only recently, out of concern over the perceived unfair advantage to participants in cartel. Once introduced, however, its use quickly became widespread. Along the way in practice, there emerged some confusion about certain aspects of its substantive and procedural requirements. In addressing the issues, it is important to achieve the dual goal of promoting leniency application and preventing any ex post opportunism. One prong of the twofold substantive requirement for joint leniency application dictates that a firm should be a subsidiary under the substantial and decisive managerial dominance and control of another firm, without competing with each other. In this context, the finding of substantial/decisive managerial dominance and control is considered critical. Under the Supreme Court precedent, whether the managerial domination and control is substantial or decisive is to be determined against the standard of a given firm’s autonomy and independence. This author argues that, courts should apply strict interpretation to recognizing the establishment of joint leniency application on this ground, as an exception to the rule of leniency application by a single firm. Accordingly, it is this author’s view that the exception may not apply inasmuch as de minimus independence is found in a firm’s management. In view of the purport of leniency application, it is reasonable to set the point at which to find the independence of a firm at the point of leniency application filing, rather than at the point of cartel. A critical element in procedural requirement is whether there is procedural commonality between the firms. In practice, it may become an issue whether the joint applicant firms should necessarily file a single application form with the competition authority. Taking full account of all relevant factors, including pertinent provisions of leniency application regulations and the purport of the system, this author argues that it is reasonable to recognize joint leniency application by finding procedural commonality insofar as substantive requirements are met, namely, inasmuch as commonality of intent and singular filing opportunity are found, even when the firms did not necessarily file a single application form. Such interpretive approach with an emphasis on the substantive aspect of joint leniency application rather than mere paperworks is also consistent with the US and EU case law. Of course, fact-finding on whether procedural commonality requirement is met should be strictly construed to prevent any ex post opportunistic behavior.