부당한 공동행위 억지를 위한 사적 집행 강화방안

For a long time, the Korea Fair Trade Commission (‘KFTC’) has actively enforced the law, contributing to the detection of violations and the promotion of competition. However, cartels remain persistent, often causing harm to businesses and consumers. In legal’s perspective, the functions of different enforcement methods for cartels are seen as distinct. Private enforcement aims at compensation for victims, with little connection to deterrence, while public enforcement through administrative sanctions by competition authorities and criminal sanctions by prosecutors is focused on deterrence. This paper suggests reconsidering this strict view from a new perspective. It proposes that rather than a dichotomy, public and private enforcement should be seen as complementary and mutually beneficial. In Korea’s heavily public enforcement dependent system has problems in deterring cartels. Through case analysis, enforcement issues are identified. The paper argues that from an ‘optimal law enforcement theory’, public and private enforcement can be complementary. It supports this claim with empirical research by Lande & Davis. The paper concludes that strengthening private enforcement can raise financial penalties for lawbreakers, ultimately overcoming the limits of public enforcement. Specifically, it focuses on how businesses are harmed by cartels from business partners and proposes ways to strengthen private enforcement to deter cartels. Suggested improvements include: 1) Utilizing competition advocacy, shareholder derivative actions under commercial law, and legislative revisions for expanding damage agreements to improve the damages system, and 2) Expanding private enforcement by utilizing alternative dispute resolution(ADR), corporate compliance policies, market monitoring through ESG supply chain management, and supporting business partners’ compliance systems.