담합입증과 경제분석의 활용(Proving collusion through economic analyses)

Economic analysis has become a vital component in proving collusion as (i) Korean courts are less favorable to allegations made by the Korea Fair Trade Commission (KFTC) and (ii) suspected firms are more inclined to counter with economic analysis than ever before. Accordingly, this study examines the feasibility of economic analysis as a form of indirect circumstantial evidence in legally proving collusion conspiracies. In response to the lack of existing research that systematically summarizes the economic analysis methodology to prove collusion, techniques were first categorized and analyzed by econometrics methodology, variable for analysis, environment of the analyzed market, data availability, etc. Indeed, the competition authorities could directly utilize such methods according to research conditions such as data availability and market specific practices. Additionally, they could make a manual to conduct analyses if the methodologies were systematically organized This study also sought ways to improve the system for utilizing economic analysis in the collusion-proving process. The first and foremost factors in analyzing cartels are the quantity and quality of the workforce. The KFTC is now only at the initial stages of economic analysis and considerable efforts are still needed to secure specialized personnel and to educate existing research teams when compared to the organizations and use of manpower of the US and other advanced countries. Besides, even with a reliable manual and competent analytical staff to carry out the economic analyses, competition authorities need adequate data to achieve the desired results. The procedure to secure data was centered on the examination of the US subpoena system. It was concluded that the introduction of the system would not be an easy task considering the differences in the legal environment between the US and Korea. Instead, a review was conducted on the recently introduced penal clause and charge for compelling compliance for intereference in KFTC investigations. The clause and charge have very similar mechanisms to the US subpoena system with regards to forcing the cooperation of suspected firms in investigations. Thus, the effectiveness of these schemes need to be closely monitored over time. Progressive changes are also needed in the court’s rulings. Indeed, in some cases, the excessive demand for evidence resembles that of a criminal trial. Economic analysis is not without fault. However, it offers valuable insight into market conditions and colluding firms’ incentive structure which can be used as indirect circumstantial evidence to prove the collusion. Finally, this study discusses legislations to punish information exchanges in competition. Unlike the US and EU and despite ample research that proves the contrary, such behavior is not penalized under current Korean law if there is no agreement on collusion. But, since some information exchanges can increase economic efficiency, an economic analysis may be required to confirm whether a specific information exchange behavior does in fact lessen competition.