리니언시 제도의 딜레마와 합리적인 제도 운용 방안 = The Dilemma of the Leniency Program and Directions for System Improvement

다국어 초록 (Multilingual Abstract)

Cartels are formed through secret collusion among cartel participants, so they tend to leave no evidence behind, and it is difficult for competition authorities to collect information. Accordingly, major countries' competition laws, including 「Korea's Monopoly Regulation and Fair Trade Act」, operate a leniency program that provides benefits for sanctions to voluntary reporters, when participating companies voluntarily report unfair joint practices or provide evidence by cooperating with investigations. Competition authorities' assessment of the effectiveness of the leniency program is very positive.
The leniency program, by design, induces cooperation among collusion participants, making it easier for competition authorities to detect and investigate collusion, and at the same time, it provides significant incentives to apply for leniency by exempting or reducing corrective measures, fines, and other sanctions for businesses that voluntarily report. Therefore, businesses calculate the benefits they will receive from applying for leniency or the reduced risk of collusion detection before applying for leniency, and may even attempt to use the leniency program or, at times, use it irregularly, to obtain immunity.
On the other hand, in reality, in order to receive the benefits of the leniency program, it is necessary to possess sufficient evidence to prove collusion. However, since businesses that led collusion inevitably have more relevant evidence than businesses that simply participated in collusion, there is a fundamental problem that businesses that led collusion are more likely to receive a reduction in penalties. In addition, even when considering the level of sanctions from the Korea Fair Trade Commission when collusion is detected and the comprehensive risk considering the difficult subsequent legal regulations, it can be seen that the leader has a greater incentive to voluntarily report. However, there is a problem that the predictability of the application of leniency may be low because there is a lot of room for discretion in the interpretation of what a ‘leading role’ is in collusion.
Recalling that the core of the leniency program is ‘having an opportunity to stop or prevent unfair joint acts through leniency,’ it is necessary to carefully consider whether the effect of suppressing collusion is greater when allowing leniency for the leader or when limiting leniency.
Recently, as collusion methods have become more sophisticated and are being carried out covertly, the need for a leniency program has increased in order to detect anti-competitive collusion, and in this situation, absolutely blocking the use of leniency by the collusion leader may not be an appropriate method for regulating cartel. Therefore, in principle, applications for leniency by the collusion leaders should be permitted, but in cases where the collusion leaders voluntarily report with dishonest intentions or irregular methods, it would be more reasonable to regulate them by establishing separate regulations.
In addition, rather than relying solely on leniency when detecting collusion by competition authorities, it would be necessary to utilize IT technologies that can create synergy with the leniency program, data analysis, and machine learning techniques to enhance collusion detection techniques, and to appropriately utilize the reporting individual reward program.