국제카르텔사법(私法) －담합으로 인한 손해배상청구의 준거법－

This article presents a case commentary on the Seoul Central District Court's judgment delivered on November 23, 2023 (the “Judgment”), concerning international illegal anti-competitive collusion, commonly referred to as “cartel torts”, which case is currently pending before an appeal court. The case, known as the “TFT-LCD Cartel Case,” arose after the Fair Trade Commission of Korea (“FTC”) imposed corrective orders and fines in 2011 against foreign corporate defendants for violating the Monopoly Regulation and Fair Trade Act (“FTA”) through illegal anti-competitive conduct. Subsequently, in 2014, the plaintiffs initiated a civil follow-on action seeking damages. The Seoul Central District Court partially upheld the plaintiffs’ claims, rendering its decision 9 years and 10 months after the lawsuit was filed. As cases involving international cartel law are relatively rare in Korea, this Judgment is notable for its treatment of the law applicable to damage claims stemming from unlawful anti-competitive practices across borders. The main contents of this article can be summarized as follows: First, that the FTA explicitly permits extraterritorial application makes it uncontroversial that the FTC could impose public-law sanctions against the foreign defendants in this case. Second, given that claims for damages resulting from international anti-competitive collusion are characterized as a form of special tort, the applicable law should be determined not solely under Article 32 of the former Korean Private International Law Act (“KPILA”), but through a combined application of Article 32 and Article 8 (the exception clause). Third, a contentious issue is whether Article 3 of the former FTA — primarily a public law provision — should be considered in determining the applicable law for civil liability. One theory advocates applying the FTA directly, while another contends that only private international law principles should govern. Regrettably, the Court did not address this debate, instead adopting a pragmatic approach despite the existing scholarly discussions. Fourth, in cross-border cartel cases where harm occurs in multiple jurisdictions, legal opinion is divided on whether to adopt a “mosaic” approach — assigning different governing laws to each affected market. In the present case, since the plaintiffs include LG Electronics and its overseas subsidiaries, the location of harm cannot be confined solely to Korea. Therefore, it may be more appropriate to seek a unified governing law via the exception clause, considering the unique transnational aspects of the case. Fifth, under the KPILA, the principle of accessory connection can override the general rule of lex loci delicti commissi. However, there is debate as to whether this principle should apply to illegal anti-competitive collusion. If applied, the law governing the goods supply contract (e.g., Taiwanese law) could be the applicable tort law. In that scenario, questions arise regarding whether violations of the FTA — as public law issues —should fall under the applicable law or remain governed independently by the FTA. Unfortunately, the Judgment does not explore this question. While the Court’s conclusion that Korean law governs the tort claim is justifiable, it missed a significant opportunity to engage more fully with complex and evolving choice-of-law issues in the context of private cartel enforcement.