Research on Actors of Concerted Action

Abstract

The four factors of concerted action are the actor, mutual consent, restraining competition measure and the ability sufficient to affect market function. This research clarified disputes regarding the factor "actor" in theory or in practice through the analysis of theories and study of individual cases.? This research separately employed "individual enterprises" and "enterprise groups" as the actors of concerted action and subjects of criminal liability. The conclusions and suggestions concluded are as follows:

1. As long as enterprises belong to the same industry and the same production/sales stage of the same market, such enterprises shall share a competition relationship.? The extent of substantial business competition that exists among the members of concerted action shall not be used as a method to determine the competition relationship between the actors of concerted action.
2. The provision "any other person or organization engaging in transactions through the provision of goods or services" set forth in Article 2(iv) of the Fair Trade Law shall be a functional definition of relevant enterprises.? Said provision emphasizes on the functional concept of "the provision of goods or services," instead of the form or type of legal organization of such trading subjects.
3. To determine whether driving up prices, market sharing or other competition restraint jointly done by associated enterprises is subject to concerted action, substantial determination standard shall be employed.? In other words, whether the associated enterprises have "economic independence" should be the main determination standard in addition to "whether the contents of the agreement are sufficient to impede the bidding function of the market."
4. In the event that a trade association is involved in concerted action, in addition to determining the trade association as the actor, it is also suggested that the executor be the actor of the concerted action to avoid the "umbrella effect." Once the agreed content of concerted action is executed, the harm to competition will be brought to a more serious level. Whether or not the executor participated in the meeting or consented to the action, the act of execution shall be deemed as the executor’s implied consent and post mutual consent to such concerted action.
5. The interpretation and application of regulations governing the subject of criminal liability of concerted action shall be distinguished from administrative liability and shall be discussed upon the nature of criminal penalty and criminal punishment of concerted action. This way, the disputes of relevant issues will be clarified. In addition, the application of Article 38 of the Fair Trade Law shall be restricted as much as possible. In the event that the imposition of an administrative fine on a juridical person involving in concerted action is sufficient, no more criminal punishment shall be imposed. It is to be line with the principle of proportionality set forth in the Constitution. Thus, it is suggested that the provision of criminal liability of juridical persons be removed from the current Fair Trade Law.