카르텔 규제의 형사적 집행 효과에 관한 의문들: 공정거래법 전면개편안의 전속 고발권 폐지 관련 내용을 중심으로

Korea’s competition authority, KFTC, has recently drafted amendments to Korea’s competition law, MRFTA, that would repeal the competition authority’s exclusive criminal referral right in respect of hardcore cartels. If being legislated into law, the criminal authority, SPO, would be authorized to investigate into price-fixing, output restriction, market division and bid-rigging cartels and bring cases to court independent of the KFTC’s referral. At the heart of such criminalization, the deterrence argument lies in and it justifies the need for joint jurisdiction by deeming cartels “criminal” to facilitate cartel deterrence and improve enforcement. However, does criminal enforcement undoubtedly ensure more effective cartel deterrence? There is limited empirical evidence to support that criminal cartel sanctions comprising custodial sentences would enhance the achievement of enforcement objectives, such as cartel detection and deterrence. Rather, it is observed that several jurisdictions, in particular in continental Europe, have not adopted criminal sanctions as a way to deter cartels and, even in jurisdictions with criminal measures, the implementation of such measures has been quite deficient. Against this backdrop, the present paper raises some questions and concerns about the criminal cartel enforcement enshrined in the amendment proposal to Korea’s competition law. The first question revolves around a lack of consensus that cartels deserve moral opprobrium, clearly. The wide and clear consensus on the immorality of cartel offence is a prerequisite for criminal enforcement because the imposition of criminal sanctions, especially imprisonment, carries a significant stigma effect. In Korea, however, it is questionable whether cartels are sufficiently reprehensible to justify such stigmatization. Although the present law already provides criminal penalties for anti-competitive cartels (subject to the KFTC’s referral), the weight of condemnation is consequential rather than retributive, and cartels appear mala prohibita rather than mala in se. Second, this paper raises a concern about the higher and stronger standard of proof for establishing violation in criminal enforcement systems that may lead to under-enforcement of cartel prohibition. The Court is likely to raise the standard of proof in administrative competition proceedings as high as that of criminal procedures if the joint jurisdiction is legislated into law. It is worth noting that the Court has already gradually elevated the evidentiary standard to prove the existence of “agreement” in competition proceedings because of the mere possibility of the criminalization of cartels. Third, this study explores some implications of criminal sanctions for individual cartel offenders to the leniency programme. Taking into account the unchecked and overarching power of Korea’s criminal authority, this paper points out that the abolishment of the KFTC’s criminal referral may undermine the effectiveness of the leniency programme by creating substantial uncertainty regarding the rewards for cartel report and cooperation, and reducing incentives for individuals to assist the prosecution. As a conclusion, the author highlights that, in order to ensure optimal or, at least, more effective cartel deterrence, further reflections need to be made regarding the institutional design of cartel enforcement framework, rather than the severeness of punishment. That is, it is worth considering, for example, ways to facilitate and stimulate private damage actions or introduce the EU’s settlement procedure into Korea’s cartel enforcement framework, rather than the criminalization of cartel enforcement.