CHAPTER I GENERAL PROVISIONS
| Article 2 (Criteria for Market-Dominant Business Entities) |
| (1) | The market share under the latter part of subparagraph 3 of Article 2 of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Act") means the percentage of the amount of goods or services supplied or purchased by a particular business entity in Korea for one year immediately preceding the business year in which the particular business entity ended the act suspected of violating Article 5 of the Act, to the amount of such goods or services supplied or purchased in Korea during the same period: Provided, That where it is impracticable to calculate the market share in terms of amount, it may be calculated in terms of quantity or production capacity. |
| (2) | For the purpose of determining whether a business entity is a market-dominant business entity pursuant to subparagraph 3 of Article 2 of the Act, the relevant business entity and its affiliates shall be deemed a single business entity. |
| (3) | Except as provided in paragraphs (1) and (2), detailed criteria necessary for determining whether a business entity is a market-dominant business entity shall be determined and publicly notified by the Fair Trade Commission. |
| Article 3 (Criteria for Holding Companies) |
| (1) | "Company ... whose total assets are at least the amount prescribed by Presidential Decree" in the former part of subparagraph 7 of Article 2 of the Act means the following: |
| 1. | In cases of a company that has been established or has conducted a merger, division, merger after division, or split-off (hereinafter referred to as "division") in the relevant business year: A company whose total assets on the balance sheet as of the date of registration of the establishment, merger, or division amount to at least 500 billion won (or 30 billion won for a venture holding company under Article 18 (1) 2 of the Act); |
| 2. | In cases of a company other than that prescribed in subparagraph 1: A company whose total assets on the balance sheet as of the end of the immediately preceding business year (or as of the date the cause for filing a report on conversion into a holding company arises, where such report is filed based on the total assets prior to the end of the business year) amount to at least 500 billion won (or 30 billion won for a venture holding company under Article 18 (1) 2 of the Act). |
| (2) | The criteria for the main business referred to in the latter part of subparagraph 7 of Article 2 of the Act mean that the aggregate value (referring to the aggregate of the values on the balance sheet as of the base date for the calculation of the total assets referred to in the subparagraphs of paragraph (1)) of subsidiaries' shares (including equity shares; hereinafter the same shall apply) that the relevant parent company owns is at least 50/100 of the total assets of the company. |
| (3) | "Conditions prescribed by Presidential Decree" in subparagraph 8 of Article 2 of the Act means the following: |
| 1. | The company shall be an affiliate of a holding company: Provided, That where an investment company for the establishment of small and medium enterprises under the Venture Investment Promotion Act or a new technology venture capitalist under the Specialized Credit Finance Business Act acquires shares of another domestic company for the purpose of start-up investment or supporting a new technology business entity and becomes an affiliate, such affiliate shall be excluded herefrom; |
| 2. | The number of shares owned by a holding company shall be equal to or exceed the number of shares owned by the largest investor among persons prescribed in Article 14 (1) 1 or 2. |
| (4) | "Conditions prescribed by Presidential Decree" in subparagraph 9 of Article 2 of the Act means the following: |
| 1. | The company shall be an affiliate of a subsidiary; |
| 2. | The number of shares owned by a subsidiary shall be equal to or exceed the number of shares owned by the largest investor among persons prescribed in Article 14 (1) 1 or 2: Provided, That cases where the number of shares owned by a subsidiary is equal to the number of shares owned by either of the following persons shall be excluded herefrom: |
| (a) | The holding company of the relevant subsidiary; |
| (b) | Another subsidiary of the holding company. |
| Article 4 (Scope of Business Groups) |
| (1) | "Companies whose business is under the de facto control ... according to the criteria prescribed by Presidential Decree" in the provision, with the exception of the items, of subparagraph 11 of Article 2 of the Act means the following companies: <Amended on Dec. 27, 2022> |
| 1. | A company in which the same person, severally or jointly with any of the following persons or entities (hereinafter referred to as "person related to the same person"), owns at least 30/100 of the total number of shares issued by that company (excluding non-voting shares under Article 344-3 (1) of the Commercial Act; hereafter in this Article, Articles 5, 33 (2), and 34 (2), the same shall apply), as the largest investor in that company: |
| (a) | A person who has the following relationship with the same person (hereinafter referred to as "relatives"): |
| (b) | A non-profit corporation or organization (limited to an unincorporated association or foundation; hereinafter the same shall apply) in which the same person, severally or jointly with persons related to the same person, has at least 30/100 shareholding out of the total amount of shareholding as the largest contributor, or which either the same person or one of persons related to the same person has established; |
| (c) | A non-profit corporation or organization under a dominant influence of the same person, directly or through a person related to the same person, with regard to the composition of executive officers, business operations, etc.; |
| (d) | A company whose business is under de facto control of the same person as provided in this subparagraph or subparagraph 2; |
| (e) | An employee of the same person or any person having any of the relationships provided in items (b) through (d) with the same person (or an executive officer in cases of a corporation, or a commercial employee or an employee hired under an employment contract in cases of an individual); |
| 2. | Any of the following companies for which the same person is deemed to exercise a dominant influence upon the management of the relevant company: |
| (a) | A company, the representative director of which has been appointed or dismissed, or at least 50/100 of executive officers of which has been or may be appointed, by the same person under a contract or agreement with other major shareholders; |
| (b) | A company subject to a dominant influence of the same person, directly or through a person related to the same person, with respect to major decision-makings or business execution, such as reorganization of the relevant company and investments in new business; |
| (c) | A company that conducts the following personnel exchanges with another company controlled by the same person (including the same person, where the same person is a company; hereafter in this item, the same shall apply): |
| (d) | A company that performs transactions involving funds, assets, goods, services, etc. or provides debt guarantees with the same person or a person related to the same person, beyond the ordinary scope; |
| (e) | Other company recognized as a single economic entity by the social norms on such grounds that it declares its business intent in such a way that it can be recognized as an affiliate of a business group of the same person. |
| (2) | Notwithstanding paragraph (1) 1 (d), a company that is managed by an outside director prescribed in Article 382 (3) of the Commercial Act, among persons in a relationship referred to in item (e) of the same subparagraph with the same person, and meets all the requirements prescribed in items of Article 5 (1) 3 shall be excluded from the scope of business group controlled by the same person. <Newly Inserted on Dec. 27, 2022> |
| Article 5 (Exclusion from Business Groups) |
| (1) | Notwithstanding Article 4 (1), the Fair Trade Commission may exclude the following companies from the scope of the business group controlled by the same person at the request of an interested party so long as such companies are recognized as being not under the control of the same person with regard to their business: <Amended on Dec. 27, 2022> |
| 1. | A company deemed to be de facto managed by a person, other than the following persons, under an agreement or contract, etc. between investors: |
| (a) | A person appointed by the same person; |
| (b) | A person who has any of the relationships provided in subparagraph 1 (a) or (e) of Article 4 (1) 1 (a) with the same person; |
| 2. | A company that satisfies all of the following requirements and is recognized as being managed independently by a relative of the same person: |
| (a) | The aggregate number of shares owned by the same person and persons related to the same person, excluding the following persons, in each company that has requested to be excluded from the business group (hereinafter referred to as "affiliate of a relative") from among companies whose business is under de facto control of a relative of the same person shall be less than 3/100 (or 10/100 in cases of a stock-listed corporation under Article 9 (15) 3 of the Financial Investment Services and Capital Markets Act (hereinafter referred to as "listed corporation")) of the total number of shares issued by each company: |
| (b) | The aggregate number of shares owned by independently managing relatives and persons related to independently managing relatives in each company other than affiliates of relatives from the business group (hereinafter referred to as "affiliate of a non-relative"), shall be less than 3/100 (or 15/100 for a company that is not a listed corporation) of the total number of shares issued by each company; |
| (c) | No executive officer shall hold concurrent positions in any affiliate of a non-relative and any affiliate of a relative; |
| (d) | There shall be no debt guarantee or loan between any affiliate of a non-relative and any affiliate of a relative: Provided, That the following debt guarantees or loans shall be excluded herefrom: |
| (e) | Neither a corrective measure (including a recommendation for correction or warning) nor a penalty surcharge shall have been taken against, or imposed on, any affiliate of a non-relative, any affiliate of a relative, or the same person or his or her relative, by the Fair Trade Commission for a violation of Article 45 (1) 9 or (2) or 47 of the Act, in relation to any of the following transactions (limited to transactions conducted for the three years immediately before and after the date the relevant company was excluded from the scope of a business group): |
| 3. | A company that meets all of the following requirements and is recognized as being managed independently by a person who has a relationship prescribed in Article 4 (1) 1 (e) with the same person: |
| (a) | The company shall be one (including any company whose business is under control of such company) whose business has been under de facto control of a person (hereinafter referred to as "independently managing executive officer") who independently manages each company requesting an exclusion from a business group (hereinafter referred to as "affiliate of an executive officer") among companies whose business is under de facto control of a person who has a relationship prescribed in Article 4 (1) 1 (e) with the same person, before the independently managing executive officer gets into the relationship prescribed in that item with the same person; |
| (b) | No person, other than the following persons, among the same person and persons related to the same person, shall have invested in any affiliate of an executive officer: |
| (c) | No independently managing executive officer or person related to an independently managing executive officer shall have investment in any company of a business group, excluding affiliates of executive officers (including the same person, where the same person is a corporation; hereinafter referred to as "affiliate of a non-executive officer"): Provided, That cases where an independently managing executive officer or a person related to an independently managing executive officer has investment therein while meeting all of the following requirements shall be excluded herefrom: |
| (d) | No executive officer, other than independently managing executive officers, shall hold concurrent positions in any affiliate of a non-executive officer and any affiliate of an executive officer; |
| (e) | There shall be no debt guarantee or loan between any affiliate of a non-executive officer and any affiliate of an executive officer; |
| (f) | For the business year immediately preceding the business year in which the date the request for exclusion from the business group falls, the ratio of all of the following is less than 50/100: |
| (a) | The company shall delegate its authority to dispose of, and exercise voting rights in, shares owned by the same person and persons related to the same person in excess of 3/100 (or 10/100 for a company that is not a listed corporation) of the total number of shares issued by the relevant company, to a creditor financial institution under the Corporate Restructuring Investment Companies Act; |
| (b) | The same person and persons related to the same person shall enter into a special agreement waiving the right to terminate the delegation contract under item (a). |
| 6. | A company under the rehabilitation procedures according to a decision on commencing such procedures under the Debtor Rehabilitation and Bankruptcy Act, which satisfies all of the following requirements: |
| (a) | The company shall delegate its authority to dispose of, and exercise voting rights in, shares owned by the same person and persons related to the same person in excess of 3/100 (or 10/100 for a company that is not a listed corporation) of the total number of shares issued by the relevant company, to a custodian appointed under Article 74 of the Debtor Rehabilitation and Bankruptcy Act, but shall succeed to such right after completion of the rehabilitation proceedings; |
| (b) | The same person and persons related to the same person shall enter into a special agreement waiving the right to terminate the delegation contract under item (a). |
| 1. | A public-private partnership project corporation established under the Act on Public-Private Partnerships in Infrastructure (hereafter in this paragraph referred to as "public-private partnership project corporation"), where any of the following entities owns at least 20/100 of the total number of shares issued by the public-private partnership project corporation, in which case the public-private partnership project corporation shall be free of both cross shareholding with any other company and debt guarantee by any person, other than its investors: |
| (a) | The State or a local government; |
(C) A public corporation, a public organization, or other corporation established under a special Act;
| 2. | A company that has at least two largest investors deemed to be not exercising any dominant influence over the composition of its executive officers, business operations, etc. among the following companies; in such cases, the shares of that company owned by the same person or persons related to the same person shall be included for the purpose of calculating the shares owned by the largest investors: |
| (a) | A company established by at least two companies running the same type of business for the purpose of restructuring their business by investing their assets in kind, through a merger, or by any other equivalent means; |
| 3. | A company provided in subparagraph 2 (b) that satisfies all of the following requirements: Provided, That the company may be excluded from the scope of a business group controlled by the same person only for the period beginning on the date the company is designated as a concessionaire under Article 13 of the Act on Public-Private Partnerships in Infrastructure and ending before it obtains confirmation of construction completion under Article 22 (1) of that Act, by completing a project in accordance with the implementation plan publicly notified under Article 15 (2) of that Act (excluding incidental projects publicly notified under Article 21 (7) of that Act) with approval from the competent administrative agency under Article 15 (1) of that Act: |
| (a) | The largest investor in the relevant company shall be deemed to be not exercising any dominant influence over the composition of executive officers, business operations, etc.; in such cases, the shares of the relevant company owned by the same person or persons related to the same person shall be included for the purpose of calculating the shares owned by the largest investor; |
| (b) | The relevant company (including any company whose business is under control of such company) shall not have invested in a company controlled by the same person (including the same person, where the same person is a company; hereafter in this subparagraph the same shall apply); |
| (c) | There shall be no debt guarantee between the relevant company (including any company whose business is under control of such company) and a company controlled by the same person: Provided, That the foregoing shall not apply where a company controlled by the same person who has invested in the relevant company (excluding any company whose business is under control of such company) provides a debt guarantee for the relevant company; |
| (d) | Neither a corrective measure (including a recommendation for correction or warning) nor a penalty surcharge shall have been taken against, or imposed on, the relevant company, the same person (including his or her relatives), or a company controlled by the same person, by the Fair Trade Commission for a violation of Article 45 (1) 9 or (2) or 47 of the Act, which is committed between the relevant company (including any company whose business is under control of such company; hereafter in this item, the same shall apply) and the same person (including his or her relatives) or between the relevant company and the company controlled by the same person, after the date the same person or a person related to the same person comes to satisfy the requirements prescribed in Article 4 (1) by acquiring or owning shares of the relevant company; |
| 4. | Any of the following companies, for which it is within10 years from the date of registration of its establishment and which have neither invested in, nor provided any debt guarantee for, a company controlled by the same person (including the same person, where the same person is a company): |
| 5. | A company that satisfies all of the following requirements (including a company whose business activities are controlled by the relevant company): |
| (a) | The relevant company shall be a company falling under any of the following as of the date immediately before the date it becomes falling under the requirement prescribed in Article 4 (1): |
| (b) | Within seven years from the date the same person or a person related to the same person acquires or owns shares of the company in agreement with a person who controls the business of the company and becomes falling under the requirement specified in Article 4 (1) [ten years if the company is a subsidiary of a venture holding company, a subsidiary of a general holding company, a small and medium-sized business start-up investment company under the Venture Investment Promotion Act, or a company invested in by a new technology business finance company under the Specialized Credit Finance Business Act (including investment through the execution of the business of an investment association)]; |
| (c) | The relevant company (including a company over which the company has control of its business; hereafter in items (d) and (e) the same shall apply) shall not have invested in a company controlled by the same person (including the same person, where the same person is a company); |
| (d) | There shall be no debt guarantee between the relevant company and a company controlled by the same person (including the same person, where the same person is a company); |
| (e) | Neither a corrective measure (including a recommendation for correction or warning) nor a penalty surcharge shall have been taken against, or imposed on, the relevant company, the same person (including his or her relatives), or a company controlled by the same person, by the Fair Trade Commission for a violation of Article 45 (1) 9 or (2), or Article 47 of the Act, which is committed between the relevant company and the same person (including his or her relatives) or between the small and medium venture business and the company controlled by the same person, after the date it becomes falling under the requirement specified in item (b). |
| (3) | Where a company excluded from the scope of a business group controlled by the same person under paragraph (1) or (2) ceases to satisfy requirements for such exclusion, the Fair Trade Commission may revoke such decision of exclusion, ex officio or upon request of an interested party: Provided, That in cases of a company excluded from the scope of a business group controlled by the same person under paragraph (1) 2, the decision of exclusion may be revoked only when it ceases to meet the criteria for exclusion within three years (or five years in the case of paragraph (1) 2 (e)) from the date of such exclusion. |
| (4) | A person who intends to request exclusion from a business group controlled by the same person under paragraph (1) 2 or 3 shall submit the following documents to the Fair Trade Commission; in such cases, the Fair Trade Commission shall verify certificates of corporation registration of affiliates of non-relatives, affiliates of relatives, affiliates of non-executive officers, or affiliates of executive officers, through administrative data matching under Article 36 (1) of the Electronic Government Act: |
| 2. | In the case of paragraph (1) 2 (d) and 3 (e): Documents regarding the current status of debt guarantees and loans certified by a certified public accountant; |
| 3. | In the case of paragraph (1) 2 (e): Documents regarding the details of transactions of funds, securities, assets, goods, and services between affiliates of non-relatives and affiliates of relatives for the three immediately preceding years from the date the company requests an exclusion from a business group controlled by the same person; |
| 4. | In the case of paragraph (1) 3 (f): Documents regarding the transactions between affiliates of non-executive officers and affiliates of executive officers, certified by certified public accountants. |
| (5) | Any interested person who intends to request that a small or medium enterprise under subparagraph 5 (a) (i) of the same paragraph is excluded from a business group controlled by the same person pursuant to the main clause of paragraph (2) shall submit documents confirmed by a certified public accountant as to the status of annual research and development expenses based on the annual sales under item (i) of that item. <Amended on Dec. 27, 2022> |
| (6) | Each company excluded from a business group controlled by the same person pursuant to paragraph (1) 2 (including a company which is the largest investor, where an independently managing relative becomes excluded from persons related to the same person pursuant to Article 6 (1) and then severally or jointly with persons related to the independently managing relative comes to own at least 30/100 of the total number of shares issued by the company) shall submit the details of transactions of funds, securities, assets, goods, and services with affiliates of non-relatives to the Fair Trade Commission every year for three years from the date it becomes excluded from a business group controlled by the same person. |
| (7) | Where a company required to submit materials under paragraph (6) fails to submit materials or submits false materials, the Fair Trade Commission may revoke its decision of exclusion. |
| Article 6 (Exclusion from Persons Related to Same Person) |
| (1) | Notwithstanding Article 4 (1) 1 (a), where a company independently managed by a relative of the same person under Article 5 (1) 2 is excluded from the scope of the business group controlled by the same person, the Fair Trade Commission may exclude the relevant independently managing relative and persons related to the independently managing relative from persons related to the same person. <Amended on Dec. 27, 2022> |
| (2) | Notwithstanding Article 4 (1) 1 (b), where the same person or a person related to the same person is deemed to be not exercising any dominant influence over the composition of executive officers, business operations, etc., the Fair Trade Commission may exclude the non-profit corporation or organization under subparagraph 1 (b) of Article 4 from persons related to the same person at the request of an interested party. <Amended on Dec. 27, 2022> |
| (3) | The Fair Trade Commission may revoke the decision of exclusion under paragraph (1) or (2) ex officio or at the request of an interested party, in any of the following cases: |
| 1. | Where the requirements for exclusion from persons related to the same person under paragraph (1) or (2) ceases to be satisfied; |
| 2. | Where a company whose business is under de facto control of the relevant independently managing relative ceases to exist due to the liquidation of, or the sale of equity of, the company prescribed in paragraph (1) or for any similar reason. |
| (4) | The Fair Trade Commission may request independently managing relatives and persons related to the independently managing relatives to submit necessary materials, where deemed necessary to revoke a decision of exclusion from persons related to the same person pursuant to paragraph (3) 2. |
| Article 7 (Scope of Domestic Financial Institutions) |
"Financial institutions prescribed by Presidential Decree" in subparagraph 18 (g) of Article 2 of the Act means the following financial institutions, whose total assets presented on the balance sheet as of the end of the immediately preceding business year (in cases a newly established company that has no balance sheet for the immediately preceding business year, referring to the paid-in capital as of the date of its establishment) is at least 300 billion won:
CHAPTER II PROHIBITION OF ABUSE OF MARKET-DOMINANT POSITION
| Article 8 (Entrustment of Market Structure Surveys or Publication) |
| 1. | Matters concerning market structure surveys or publication of the survey findings under Article 4 (3) 1 of the Act; |
| 2. | Requesting submission of materials under Article 4 (4) of the Act. |
| (2) | The head of an institution entrusted with the affairs to survey market structures or publish the survey findings under Article 4 (5) of the Act shall notify the Fair Trade Commission of the details of managing the entrusted affairs. |
| Article 9 (Types of, and Criteria for, Abusive Practices) |
| (1) | Unfairly determining, maintaining, or changing the price of goods or service fees as prescribed in Article 5 (1) 1 of the Act (hereinafter referred to as "price") means significantly increasing or moderately lowering the price compared to fluctuations in the supply and demand or the cost required for the supply (limited to ordinary levels of the same or similar types of business), without good cause. |
| (2) | Unfairly controlling the sale of goods or the provision of services as prescribed in Article 5 (1) 2 of the Act means the following acts: |
| 1. | Sharply reducing the supply of goods or services in light of recent market trends, without good cause; |
| 2. | Reducing the supply of goods or services despite a short supply in distribution channels, without good cause. |
| (3) | Unfairly interfering with business activities of any other business entity as prescribed in Article 5 (1) 3 of the Act means an act of hindering business activities of other business entities by directly or indirectly conducting the following acts: |
| 1. | Interfering with any other business entity’s purchase of raw materials necessary for such entity to engage in production activities, without good cause; |
| 2. | Hiring an employee essential for the business activities of any other business entity by providing, or promising to provide, the employee with excessive economic benefits in light of ordinary practices; |
| 3. | Denying, interrupting, or limiting the use of or access to elements indispensable for any other business entity to produce, supply, or sell its goods or services, without good cause; |
| 4. | Any other acts determined and publicly notified by the Fair Trade Commission, among acts of making it difficult for any other business entity to engage in business activities by other improper means other than those prescribed in subparagraphs 1 through 3. |
| (4) | Unfairly interfering with the market entry of a new competitor as prescribed in Article 5 (1) 4 of the Act means making it difficult for a new competitor to enter the market by directly or indirectly conducting any of the following acts: |
| 1. | Concluding an exclusive transaction contract with a distributor, without good cause; |
| 2. | Purchasing rights, etc. necessary for an existing business entity to continue its business activities, without good cause; |
| 3. | Denying or limiting the use of or access to elements indispensable for a new competitor to produce, supply, or sell its goods or services, without good cause; |
| 4. | Any other acts determined and publicly notified by the Fair Trade Commission, among acts of making it difficult for a new competitor to enter the market by other improper means other than those prescribed in subparagraphs 1 through 3. |
| (5) | Making an unfair transaction to exclude a competitor as prescribed in Article 5 (1) 5 of the Act means the following acts: |
| 1. | Unfairly supplying goods or services at prices lower than the arm’s length prices or purchasing them at prices higher than the arm’s length prices, thereby likely to cause exclusion of competitors; |
| 2. | Unfairly making a transaction with the other party to the transaction on the condition that the other party does not make any transaction with a competitor. |
| (6) | Matters necessary for detailed types of, and criteria for, acts prescribed in paragraphs (1) through (5) shall be determined and publicly notified by the Fair Trade Commission. |
| Article 10 (Requests for Price Surveys) |
If there are reasonable grounds to believe that a market-dominant business entity has unfairly determined, maintained, or changed the price of goods or services under Article 5 (1) 1 of the Act, the Fair Trade Commission may request the head of the relevant administrative agency or any public institution conducting price surveys to conduct surveys on the price of such goods or services.
| Article 11 (Presumption of Market-Dominant Business Entities) |
| (1) | The market share referred to in Article 6 of the Act shall be the market share specified in Article 2. |
| (2) | The amount of annual sales or purchases under the provision, with the exception of the subparagraphs, of Article 6 of the Act means the amount paid for goods or services supplied or purchased (referring to the amount less indirect taxes imposed on the goods or services; hereinafter the same shall apply) for one year immediately preceding the business year in which the relevant business entity ends the act suspected of violating Article 5 of the Act (referring to the date such act is recognized or reported, if that act continues until the date it is recognized or reported). |
| (3) | For the purpose of presuming a business entity to be a market-dominating business entity pursuant to Article 6 of the Act, the relevant business entity and its affiliates shall be deemed a single business entity. |
| Article 12 (Methods of Publishing Facts of Receiving Corrective Orders) |
Where the Fair Trade Commission intends to order the relevant business entity to make a publication under Article 7 of the Act, the Commission shall specify the details of the publication, the type and number of media outlets, the size of the pages, etc. in consideration of the following: | 1. | The details and seriousness of the relevant violation; |
| 2. | The duration and frequency of the relevant violation. |
| Article 13 (Penalty Surcharges) |
| (1) | "Sales prescribed by Presidential Decree" in the main clause of Article 8 of the Act means the sales of related goods or services sold by each business entity that has committed a violation in a particular business area during the violation period or an amount equivalent thereto, which is calculated as determined and publicly notified by the Fair Trade Commission (hereinafter referred to as "related sales"). In such cases, if a violation is committed in connection with the purchase of goods or services, the purchase amount of the related goods or services shall be deemed the related sales. |
| (2) | "Business entity prescribed by Presidential Decree" in the main clause of Article 8 of the Act means a business entity that records the aggregated amount of the prices paid for goods or services as operating revenues, etc. on its financial statements, etc. |
| (3) | "Cases prescribed by Presidential Decree" in the proviso of Article 8 of the Act means any of the following cases: |
| 1. | Where there are no operating records because a business entity has not commenced business or has suspended its business, etc.; |
| 2. | Where it is impracticable to objectively calculate the sales because data for the calculation of sales have disappeared or have been damaged due to a disaster, etc.; |
| 3. | Where it is impracticable to calculate related sales, since the violation period or the scope of related goods or services cannot be determined in a final and conclusive manner. |
CHAPTER III RESTRICTIONS ON BUSINESS COMBINATIONS
| Article 14 (Scope of Related Parties) |
| (1) | "Person in a special relationship prescribed by Presidential Decree" in the main clause, with the exception of the subparagraphs, of Article 9 (1) of the Act means a person in any of the following relationships with a company or a person other than a company (hereinafter referred to as "related party"): |
| 1. | A person who has de facto control over the company; |
| 2. | A person related to the same person (excluding persons excluded from persons related to the same person pursuant to Article 6 (1) or (2)); |
| 3. | A person who participates in a business combination under the main clause, with the exception of the subparagraphs, of Article 9 (1) of the Act (hereinafter referred to as "business combination") to achieve the common goal of controlling management. |
| (2) | "Person prescribed by Presidential Decree" in Article 9 (1) 5 (a) of the Act means a person specified in paragraph (1) 3. |
| Article 15 (Standards for Total Assets or Sales) |
| (1) | The total assets referred to in the proviso, with the exception of the subparagraphs, of Article 9 (1) of the Act, shall be the amounts classified as follows: Provided, That in cases of a company engaging in financial business or insurance business, the amount shall be the total amount of capital (referring to the total assets less liabilities, as presented on the balance sheet; hereinafter the same shall apply), as presented on the balance sheet as at the end of immediately preceding business year or the capital stock, whichever is greater: |
| 1. | Where new shares and bonds are not issued during the business year in which the business combination date falls: The total assets presented on the balance sheet as of the end of the business year immediately preceding the business year in which the business combination date falls; |
| 2. | Where new shares and bonds are issued during the business year in which the business combination date falls: The sum of the total assets presented on the balance sheet as of the end of the immediately preceding business year and the amount increased by the issuance of new shares and bonds. |
| (2) | The sales referred to in the proviso, with the exception of the subparagraphs, of Article 9 (1) of the Act shall be the sales presented on the income statement for the business year immediately preceding the business year in which the business combination date falls: Provided, That in cases of a company engaging in financial business or insurance business, it shall be the operating revenues indicated in the income statement for the immediately preceding business year. |
| (3) | "Company that satisfies the criteria prescribed by Presidential Decree" in the proviso, with the exception of the subparagraphs, of Article 9 (1) means a company whose total assets amount under paragraph (1) or sales amount under paragraph (2) is at least two trillion won. |
| Article 16 (Standards for Exemption from Application of Business Combinations) |
"Where ... satisfies the conditions prescribed by Presidential Decree" in Article 9 (2) 2 of the Act means cases where all of the following conditions are satisfied: | 1. | Where the production equipment, etc. of a company cannot be utilized continuously in the relevant market without a business combination; |
| 2. | Where it is impracticable to conduct any other business combination less competition-restrictive than the relevant business combination. |
| Article 17 (Standards for Business Combination Date) |
The business combination date referred to in the main clause of Article 9 (5) of the Act shall be the following dates: | 1. | In cases of owning shares or increasing shareholding ratio in another company: The following dates: |
| (a) | In cases of acquiring shares of a stock company, the date a share certificate is issued: Provided, That it shall be the date the price of shares is paid, if no share certificate is issued; and it shall be the date the relevant rights are transferred, if voting rights or other rights in shares are substantially transferred before the issuance of share certificates or the full payment of the price of shares under an agreement or a contract, etc.; |
| (b) | In cases of acquiring new shares of a stock company for value, the date following the due date for payment of subscription prices for new shares; |
| (c) | In cases of acquiring equity of a company, other than a stock company, the date the acquisition of equity takes effect; |
| (d) | In cases other than those prescribed in items (a) through (c), if the shareholding ratio increases due to a reduction of capital, the retirement of shares, or other causes, the date the increase in the shareholding ratio is determined in a final and conclusive manner; |
| 2. | In cases of concurrently holding an executive position in another company under Article 9 (1) 2 of the Act: The date the appointment of an executive officer is resolved at a general meeting of shareholders, or a general meeting of employees, of the company in which the executive officer concurrently hold an executive position; |
| 3. | In cases of merging with another company: The date the merger is registered; |
| 4. | In cases of acquiring business under Article 9 (1) 4 of the Act (hereinafter referred to as "business acquisition"): The date the business acquisition price is paid up: Provided, That, where the business acquisition price is paid up after the lapse of 90 days after the date of conclusion of a contract, it shall be the date 90 days elapse from the date of conclusion of the contract; |
| 5. | In cases of participating in the establishment of a new company: The date following the due date for payment of prices for allocated shares. |
| Article 18 (Standards and Procedures for Reporting Business Combinations) |
| (1) | "Company that satisfies the criteria prescribed by Presidential Decree in terms of the total assets or sales" in the provision, with the exception of the subparagraphs, of Article 11 (1) of the Act means a company whose total assets amount under Article 15 (1) or sales amount under Article 15 (2) is at least 300 billion won. |
| (2) | "Another company that satisfies the criteria prescribed by Presidential Decree in terms of the total assets or sales" in the provision, with the exception of the subparagraphs, of Article 11 (1) of the Act means a company whose total assets amount under Article 15 (1) or sales amount under Article 15 (2) is at least 30 billion won. |
| (3) | Notwithstanding paragraphs (1) and (2), if both of the company required to report its business combination under Article 11 (1) of the Act (hereinafter referred to as "company required to report its business combination") and its partner company referred to in that paragraph (hereinafter referred to as "partner company") are foreign companies (referring to companies that have their main offices in foreign countries or which are established under a foreign statute) or if the company required to report its business combination is a domestic company and its partner company is a foreign company, they shall be required to report their business combination pursuant to Article 11 (1) of the Act only when the domestic sales amount of respective foreign companies is at least 30 billion won according to calculation as determined and publicly notified by the Fair Trade Commission. |
| (4) | Cases where a company becomes to own at least 20/100 (or 15/100 for a listed corporation; hereafter in this paragraph, the same shall apply) of the total number of shares issued by another company (excluding the number of non-voting shares under Articles 344-3 (1) and 369 (2) and (3) of the Commercial Act) as prescribed in Article 11 (1) 1 of the Act means cases where its shareholding increases from less than 20/100 to at least 20/100. |
| (5) | Cases where a person becomes the largest investor by additionally acquiring shares of another company as prescribed in Article 11 (1) 2 of the Act means cases where a person who was not the largest investor becomes the largest investor. |
| (6) | A person who intends to file a report on business combination under Article 11 (1) or (2) of the Act shall submit to the Fair Trade Commission a report stating the following matters, as determined and publicly notified by the Fair Trade Commission, along with documents substantiating the details of the report: |
| 1. | The name of the person required to report and the name of the partner company; |
| 2. | The sales and the total assets of the person required to report and those of the partner company; |
| 3. | Business activities of the person required to report and those of the partner company, and details of the business combination; |
| 4. | The current status of related markets; |
| 5. | Other matters equivalent to those prescribed in subparagraphs 1 through 4, which are determined and publicly notified by the Fair Trade Commission as necessary for reporting a business combination. |
| (7) | Where a report or accompanying documents submitted pursuant to paragraph (6) are incomplete, the Fair Trade Commission may order such documents to be supplemented within a fixed period. In such cases, the period required for supplementation (including the date the written order requiring supplementation is sent and the date the supplemented documents reach the Fair Trade Commission) shall not be included in the period referred to in Article 11 (7) and (10) of the Act. |
| Article 19 (Criteria for Reporting Business Combinations with Small Acquirees) |
| (1) | "Amount prescribed by Presidential Decree" in Article 11 (2) 1 of the Act means 600 billion won. |
| (2) | "Substantial level prescribed by Presidential Decree" in Article 11 (2) 2 of the Act means any of the following: |
| 1. | Where the relevant small acquiree or its related party has ever sold or provided goods or services to at least one million persons a month in the domestic market for the three immediately preceding years from the month in which the date specified in the subparagraphs of Article 20 (3) falls; |
| 2. | Where the relevant small acquiree or its related party has satisfied all of the following requirements during the three immediately preceding years from the business year in which the date specified in the subparagraphs of Article 20 (3) falls: |
| (a) | It shall have continuously retained and utilized domestic research facilities or research personnel; |
| (b) | Its annual spending on domestic research facilities, research personnel, domestic research activities, etc. shall have ever reached at least 30 billion won; |
| 3. | Other cases equivalent to those prescribed in subparagraph 1 or 2, which are determined and publicly notified by the Fair Trade Commission as necessary for reporting a business combination. |
| Article 20 (Deadline for Reporting Business Combinations) |
| (1) | The business combination date referred to in the main clause and the proviso, with the exception of the subparagraphs, of Article 11 (6) of the Act means the business combination date prescribed in Article 17. |
| (2) | "Cases prescribed by Presidential Decree" in Article 11 (6) 1 of the Act means any of the following business combinations falling under paragraph (1) 1 and 2 of that Article: |
| 1. | Where shares are acquired through competitive trading in a securities market defined in Article 9 (13) of the Financial Investment Services and Capital Markets Act: Provided, That excluded herefrom shall be cases where shares are acquired by settling the payment through a securities market after determining the quantity, price, etc. of the relevant shares under a contract or an agreement between the parties to the transaction; |
| 2. | Where the shareholding ratio increases as a result of the forfeiture of shares after a rights issue; |
| 3. | Where the shareholding ratio increases as a result of share retirement or capital reduction based on a decision by the board of directors or the general meeting of shareholders of another company, irrespective of the will of companies participating in the business combination; |
| 4. | Other cases equivalent to those prescribed in subparagraphs 1 through 3, which are determined and publicly notified by the Fair Trade Commission as required to be reported after the business combination date. |
| (3) | "Date prescribed by Presidential Decree, such as the date a merger contract is concluded" in the proviso, with the exception of the subparagraphs, of Article 11 (6) of the Act means the following dates: |
| 1. | Business combinations that fall under the type specified in Article 11 (1) 1 or 2 of the Act: The date the acquisition or owning of shares is determined under a contract or an agreement, etc. or by the board of directors, etc.; |
| 2. | Business combinations that fall under the type specified in Article 11 (1) 4 of the Act: The date a contract for merger or business acquisition is concluded; |
| 3. | Business combinations that fall under the type specified in Article 11 (1) 5 of the Act: The date a resolution on participating in the establishment of a company is made at a general meeting of shareholders, a general meeting of employees, or the board of directors in lieu of such general meeting. |
| (4) | If there is any material change in the reported matters, a company required to report business combination that has filed a report pursuant to the proviso, with the exception of the subparagraphs, of Article 11 (6) of the Act, shall report the material change to the Fair Trade Commission by the date of ownership of its shares, the date of registration of the merger, the date of business acquisition, or the date of establishment of the company. |
| Article 21 (Designation of Agents to File Reports on Business Combinations) |
| (1) | A person who intends to be designated as an agent under the proviso of Article 11 (11) of the Act shall file an application stating the name, the total assets, and the sales of the company, etc. with the Fair Trade Commission. |
| (2) | Where an agent is designated upon receipt of an application under paragraph (1), the Fair Trade Commission shall notify the applicant of such fact. |
| Article 22 (Corrective Measures) |
| (1) | Where the Fair Trade Commission shall issue an order to take corrective measures under Article 14 (1) of the Act, it shall notify in writing that enforcement fines may be imposed and collected for failure to take such corrective measures under Article 16 of the Act. |
| (2) | Article 12 shall apply mutatis mutandis to publication orders under Article 14 (1) 5 of the Act. |
| Article 23 (Imposition of Enforcement Fines) |
| (1) | An enforcement fine under Article 16 (1) of the Act shall be imposed for the period beginning on the date following the expiration date of the period prescribed by corrective measures under Article 14 (1) of the Act ending on the date the corrective measures are implemented as follows: |
| 1. | In cases of share disposal: The date of share certificate delivery; |
| 2. | In cases of an executive officer's resignation: The date of registration of the relevant fact; |
| 3. | In cases of transfer of business: The date of registration of ownership transfer or registration of transfer, of the related real estate, etc. |
| (2) | Notwithstanding paragraph (1), an enforcement fine imposed on a person who fails to take corrective measures under Article 14 (1) 6 or 7 of the Act (limited to orders requiring implementation of certain obligations at intervals such as every quarter or business year) shall be imposed for the relevant period of non-compliance. |
| (3) | Enforcement fines under paragraph (1) shall be imposed, in the absence of special circumstances, within 30 days after the expiration date of the period prescribed by the corrective measures; and enforcement fines under paragraph (2), within 30 days after the date it can be checked whether the corrective measures have been taken. |
| (4) | The criteria for imposing enforcement fines under Article 16 (1) of the Act shall be as specified in attached Table 1. |
| (5) | In imposing enforcement fines under Article 16 (1) of the Act, the Fair Trade Commission shall notify in writing the amount of the fines per day (referring to the finalized amount for the relevant period of non-compliance in cases of enforcement fines under paragraph (2)), grounds for imposition, deadline for payment, receiving agencies of such fines, methods of filing an objection, agencies with which such objection may be filed, and other similar information. |
| (6) | A person notified under paragraph (5) shall pay enforcement fines within the following periods: Provided, That where he or she is unable to pay the fines within the period due to a force majeure event or any other unavoidable reason, he or she shall pay such fines within 30 days after the date such reason ceases to exist: |
| 1. | In cases of enforcement fines under paragraph (1): Within 30 days after the date the Fair Trade Commission determines the amount of the fines in a final and conclusive manner and gives a payment notice, after checking the date of completion of compliance; |
| 2. | In cases of enforcement fines under paragraph (2): Within 30 days after the date the Fair Trade Commission issues a payment notice. |
| (7) | Where the Fair Trade Commission imposes enforcement fines under Article 16 (1) of the Act, if no corrective measure is taken even after the lapse of 90 days from the end of the period specified by the corrective measure under Article 14 (1) of the Act, the Fair Trade Commission may collect the fines upon the lapse of every 90-day period calculated from such end date. |
| (8) | Except as provided in paragraphs (1) through (7), details necessary for imposing enforcement fines shall be determined and publicly notified by the Fair Trade Commission. |
| Article 24 (Demands for Payment of Enforcement Fines) |
| (1) | Where the Fair Trade Commission intends to make a demand to collect enforcement fines under Article 16 (2) of the Act, such demand shall be made in writing within 15 days after the deadline for payment of such fines expires. |
| (2) | Where the Fair Trade Commission issues a demand notice under paragraph (1), the deadline for payment of enforcement fines shall be not later than 10 days from the date of issuing such notice. |
| Article 25 (Entrustment of Disposition on Delinquency) |
| (1) | Where the Fair Trade Commission entrusts affairs related to disposition on delinquency for payment of enforcement fines under Article 16 (3) of the Act to the Commissioner of the National Tax Service, it shall do so in writing accompanied by the following documents: |
| 1. | A written resolution of the Fair Trade Commission; |
| 2. | A written resolution on tax assessment and notice thereof; |
| (2) | Where the Commissioner of the National Tax Service is entrusted with affairs related to disposition on delinquency under paragraph (1), the Commissioner shall notify the Fair Trade Commission of the following matters in writing within 30 days after the date the following causes arise: |
| 1. | Where affairs related to disposition on delinquency end: The date and time when the affairs end, and other necessary matters; |
| 2. | Where the Fair Trade Commission requests the notification of the progress of a disposition on delinquency: The progress. |
CHAPTER IV RESTRICTIONS ON CONCENTRATION OF ECONOMIC POWER
| Article 26 (Reporting on Establishment of, or Conversion into, Holding Companies) |
| (1) | A person who intends to file a report on the establishment of, or conversion into, a holding company under Article 17 of the Act shall submit a report stating the following, along with documents evidencing the details of the report and documents on the results of the resolution of the debt guarantees specified in the subparagraphs of Article 19 of the Act (limited to where such report is filed by the same person who controls member companies of such business group subject to limitations on cross shareholding as designated under the former part of Article 31 (1) of the Act, or his or her related parties) to the Fair Trade Commission: |
| 1. | The name of the company and the name of the representative thereof; |
| 2. | The following matters concerning a holding company, and its subsidiaries, second-tier subsidiaries, and third-tier subsidiaries under Article 18 (5) of the Act (hereinafter referred to as "holding company, etc."): |
| (a) | The name of the relevant company and the name of the representative thereof; |
| (b) | The total assets and liabilities; |
| (c) | The current status of shareholders and shareholdings; |
| 3. | Other matters equivalent to those prescribed in subparagraphs 1 and 2, which are determined and publicly notified by the Fair Trade Commission as necessary for filing a report on the establishment of, or conversion into, a holding company. |
| (2) | The report on the establishment of, or conversion into, a holding company under Article 17 of the Act shall be filed within the following periods: |
| 1. | Where a holding company is established: Within 30 days after the date the establishment of the holding company is registered; |
| 2. | Where a company is converted into a holding company through a merger with another company or a division of such company: Within 30 days after the date of registration of the merger or division; |
| 4. | In cases of a company converted into a holding company through acquisition of shares in another company, an increase or a decrease in assets, or due to other causes: Within four months from the base date for the calculation of the total assets referred to in Article 3 (1) 2. |
| (3) | Where at least two persons intend to establish a holding company and file a report thereon under Article 17 of the Act, they shall jointly file such report: Provided, That if the persons required to file a report designate a representative among them and the representative files a report, the representative may solely file the report. |
| (4) | Where a person who has filed a report on establishment or conversion under Article 17 of the Act notifies the Fair Trade Commission that the relevant holding company ceases to meet the standards for holding companies referred to in Article 3 (1) or (2) due to a decrease in shareholdings, an increase or a decrease in assets, etc. during a business year, the company shall not be deemed a holding company from the date the relevant grounds arise. |
| (5) | Where a person who has filed a report on establishment or conversion under Article 17 of the Act notifies the Fair Trade Commission that the relevant holding company ceases to meet the standards for holding companies pursuant to paragraph (4), the person shall submit to the Fair Trade Commission the balance sheet audited by a certified public accountant and documents on the current status of stock ownership as of the date the grounds on which it ceases to be a holding company arise. |
| (6) | Upon receipt of the documents under paragraph (5), the Fair Trade Commission shall notify in writing the relevant holding company of the processing result within 30 days after the date of receipt. |
| (7) | Except as provided in paragraphs (1) through (6), details necessary for the procedures, methods, etc. for reporting, etc. on establishment of, and conversion into, holding companies shall be determined and publicly notified by the Fair Trade Commission. |
| Article 27 (Criteria for Venture Holding Companies) |
| (1) | "Person prescribed by Presidential Decree" in Article 18 (1) 1 of the Act means a person specified in Article 14 (1) 3. |
| (2) | "Small and medium enterprise prescribed by Presidential Decree" in Article 18 (1) 2 of the Act means a small and medium enterprise prescribed in the provision, with the exception of the items, of Article 5 (2) 5 (a) (i). <Amended on Dec. 27, 2022> |
| (3) | "Holding company meeting the criteria prescribed by Presidential Decree" in Article 18 (1) 2 of the Act means a holding company meeting all of the following requirements: <Amended on Dec. 27, 2022> |
| 1. | The ratio of the total price of shares of a small and medium enterprise or a venture business under Article 5 (2) 5 (a) (i) or (ii) owned by the relevant company to the total price of shares of all of its subsidiaries owned by it shall be at least 50/100: Provided, That the ratio shall be at least 30/100 for two years from the date a resolution on the establishment of, or conversion into, a venture holding company is first adopted under subparagraph 3; |
| 2. | The same person of the relevant company (limited to member companies of a business group subject to disclosure for which the same person is a natural person, as designated under the former part of Article 31 (1) of the Act) or his or her relatives shall not own shares of its subsidiaries, second-tier subsidiaries, or third-tier subsidiaries under Article 18 (5) of the Act (hereinafter referred to as "third-tier subsidiary"); |
| 3. | The establishment of, or conversion into, a venture holding company shall have been resolved by the board of directors or at a general meeting of shareholders. |
| Article 28 (Restrictions on Acts by Holding Companies) |
| (2) | "Company meeting the criteria prescribed by Presidential Decree, such as having a close relationship to financial business or insurance business" in the main clause of Article 18 (2) 4 of the Act means a company aiming at engaging in any of the following business: |
| 1. | Business of providing financial or insurance companies with services, such as computing and information processing; |
| 2. | Business of managing real estate or other assets possessed by financial or insurance companies; |
| 3. | Business of conducting surveys and research related to financial business or insurance business; |
| 4. | Other business directly related to the inherent business of financial or insurance companies. |
| Article 29 (Submission of Reports on Business of Holding Companies) |
| (1) | A holding company shall submit to the Fair Trade Commission a report on the business of the holding company, etc., including the following, within four months after the end of the relevant business year pursuant to Article 18 (7) of the Act: |
| 1. | The general status of the following: |
| (a) | The name of the company and the name of its representative; |
| (c) | The date of establishment; |
| 2. | The current status of the following financial affairs: |
| (c) | The total liabilities; |
| 3. | The current status of affiliates; |
| 4. | The current status of shareholders and shareholdings; |
| 5. | The current status of such trading with or for related parties (excluding overseas affiliates; hereafter in this subparagraph, the same shall apply) as prescribed in the subparagraphs of Article 26 (1) of the Act (limited to cases where a venture holding company submits such documents); |
| 6. | Other matters equivalent to those specified in subparagraphs 1 through 5, which are determined and publicly notified by the Fair Trade Commission as necessary to verify the business details of a holding company, etc. |
| (2) | The following documents shall be attached to the report specified in paragraph (1): |
| 1. | Financial statements of the holding company, etc., such as its balance sheet and income statement for the immediately preceding business year (including consolidated financial statements in cases of an enterprise which prepares consolidated financial statements under the Act on External Audit of Stock Companies); |
| 2. | An auditor's report on financial statements under subparagraph 1 (limited to member companies of a business group subject to disclosure designated under the former part of Article 31 (1) of the Act and companies subject to external audit under the Act on External Audit of Stock Companies); |
| 3. | Rosters of shareholders of subsidiaries, second-tier subsidiaries, and third-tier subsidiaries. |
| (3) | Where a report or accompanying documents submitted pursuant to paragraphs (1) and (2) are incomplete, the Fair Trade Commission may order such documents to be supplemented within a fixed period. |
| (4) | Except as provided in paragraphs (1) through (3), details necessary for the methods and procedures, etc. for submitting reports on business details of holding companies, etc. shall be determined and publicly notified by the Fair Trade Commission. |
| Article 30 (Special Cases concerning Restrictions on Owning Shares of Financial Companies by General Holding Companies) |
"Ratio prescribed by Presidential Decree" in Article 20 (3) 4 (a) of the Act means 40/100.
| Article 31 (Exception to Prohibition of Debt Guarantees for Affiliates) |
| (1) | Debt guarantees provided in subparagraph 1 of Article 24 of the Act shall be guarantees for the following debts: |
| 1. | Debts of the transferor acquired by means of transfer of shares, a merger, etc., which are outstanding at the time of transfer or to be taken over by the transferee: Guarantees provided by the transferee or its affiliates; |
| 2. | Debts taken over by the transferee, where the transferor’s debts are divided and taken over by the transferee: Guarantees provided by an affiliate of the transferee. |
| (2) | Debt guarantees provided in subparagraph 2 of Article 24 of the Act shall be as follows: |
| 1. | A guarantee for a loan extended by the Export-Import Bank of Korea to provide funds necessary in the process of producing capital goods and other products and providing technologies pursuant to Article 18 (1) 1 and 2 of the Export-Import Bank of Korea Act, or a loan extended by another domestic financial institution in connection therewith; |
| 2. | A guarantee for a bid bond, contract performance guarantee, advance payment refund guarantee, reserve repayment guarantee, defect liability guarantee, or tax payment guarantee provided by a domestic financial institution in connection with any of the following projects: |
| (a) | Construction projects and projects to install industrial facilities, which are performed overseas; |
| (b) | Projects to build ships for export; |
| (c) | Projects to export services; |
| (d) | Other projects for the export of goods, recognized by the Fair Trade Commission for the purpose of strengthening the international competitiveness of enterprises; |
| 3. | A guarantee for funding by domestic financial institutions for technological development projects, such as commercializing locally developed new technology or introduced technology and purchasing equipment and machinery to develop technology; |
| 4. | A guarantee to domestic financial institutions in purchasing export bills under documents against acceptance or payment terms and opening a local letter of credit; |
| 5. | A guarantee for credits provided by overseas branch offices of domestic financial institutions in relation to the following projects: |
| (b) | An overseas construction or service project performed by international contractors and service providers; |
| (c) | Other projects similar to those prescribed in items (a) or (b), which are recognized by the Fair Trade Commission to strengthen international competitiveness of enterprises; |
| 6. | A guarantee directly related to the acquisition by a third party of a company which has filed an application with the court to commence rehabilitation procedures under the Debtor Rehabilitation and Bankruptcy Act; |
| Article 32 (Exception to Restrictions on Voting Rights Held by Financial Companies, Insurance Companies, and Public Interest Corporations) |
"Those prescribed by Presidential Decree" in each latter part, with the exception of the items, of Article 25 (1) 3 and (2) 2 of the Act means any person provided in Article 14 (1) 3.
| Article 33 (Resolutions by Board of Directors on Large-Scale Internal Trading and Disclosure Thereof) |
| (1) | The scale of a trade under the subparagraphs of Article 26 (1) of the Act (hereinafter referred to as "large-scale internal trading") shall be an amount (in cases falling under subparagraph 4 of that paragraph, referring to the aggregated amount of trades to be performed in a quarter) equal to or greater than the lower of the following: <Amended on May 30, 2023> |
| 2. | An amount equivalent to 5/100 of the greater of the total capital or capital of a domestic member company of a business group subject to disclosure designated under the former part of Article 31 (1) of the Act, which intends to engage in a large-scale internal trade (if the amount is less than 500 million won). |
| (2) | "Affiliate prescribed by Presidential Decree" in Article 26 (1) 4 of the Act means an affiliate, at least 20/100 of the total number of issued shares of which are owned by the same person who is a natural person, severally or jointly with relatives of the same person (excluding those excluded from persons related to the same person pursuant to Article 6 (1)), or its subsidiary as defined in Article 342-2 of the Commercial Act. |
| (3) | "Material facts prescribed by Presidential Decree, such as the purpose, scale, and terms and conditions of the trading and the trading counterparty" in Article 26 (2) of the Act means the following: |
| 1. | The objectives of the trading and an object to be traded; |
| 2. | The trading counterparty (in cases of a trading for a related party, including such related party); |
| 3. | The amount and terms and conditions of the trading; |
| 4. | The total trading balance of the same type of trading with the trading counterparty under subparagraph 2; |
| 5. | Other matters equivalent to those prescribed in subparagraphs 1 through 4, which are determined and publicly notified by the Fair Trade Commission as necessary for resolution of the board of directors on large-scale internal trading and disclosure thereof. |
| (4) | "Trading that meets the criteria prescribed by Presidential Decree" in the former part of Article 26 (4) of the Act means a trading that meets all of the following requirements: |
| 2. | The trading shall be an ordinary trading arising in the course of conducting financial business or insurance business. |
| (5) | Except as provided in paragraphs (1) through (4), details necessary for the methods, procedures, and timing for resolution of the board of directors on large-scale internal trading and disclosure thereof shall be determined and publicly notified by the Fair Trade Commission. |
| Article 34 (Disclosure of Material Facts by Unlisted Companies) |
| (1) | "Company that meets the criteria prescribed by Presidential Decree in terms of its total assets, etc." in the main clause, with the exception of the subparagraphs, of Article 27 (1) of the Act means the following companies: |
| 1. | A company with the total assets of at least 10 billion won as at the end of the immediately preceding business year; |
| 2. | A company with the total assets of less than 10 billion won as at the end of the immediately preceding business year, in which a related party (referring only to the same person who is a natural person and his or her relatives; hereafter in this subparagraph, the same shall apply), severally or jointly with other related parties, owns at least 20/100 of the total number of its issued shares, or which solely owns more than 50/100 of the total number of its issued shares: Provided, That a company that is in the process of liquidation or has been suspending its business for at least one year shall be excluded herefrom. |
| (2) | "Largest shareholder and major shareholders prescribed by Presidential Decree" in Article 27 (1) 1 of the Act means the following shareholders: |
| 1. | The largest shareholder: A shareholder of the relevant company who owns the largest number of shares (including the same person and persons related to the same person, where the same person, severally or jointly with persons related to the same person, is the largest shareholder) in terms of the total number of issued voting shares; |
| 2. | A major shareholder: A shareholder who owns at least 10/100 of the voting shares issued by a company on his or her account, regardless of in whose name the shares are owned; or who exercises de facto control over important management issues, such as appointment or dismissal of executive officers. |
| (3) | "Matters prescribed by Presidential Decree" in Article 27 (1) 1 of the Act means the following: |
| 1. | The shareholding status of the largest shareholder prescribed in paragraph (2) 1 and major shareholders prescribed in paragraph (2) 2 and any change in such status (limited to where the largest shareholder's or major shareholders' shareholding ratio changes by at least 1/100 of the total number of issued shares); |
| 2. | The current executive structure and any change in such structure. |
| (4) | "Matters prescribed by Presidential Decree" in Article 27 (1) 2 of the Act means the following; in such cases, the total assets and the equity capital as at the end of the latest business year shall be based on the period from three months after the end of each business year until three months after the end of the following business year, and in cases of a newly incorporated company without any balance sheet of the latest business year, it shall be based on the paid-in capital as at the time of its establishment in lieu of the total assets and the equity capital as at the end of the latest business year: |
| 1. | A decision, if the decision is made to acquire, or dispose of, fixed assets in an amount that is at least 10/100 of the total assets as of the end of the latest business year (including the acquisition or disposal of fixed assets through a trust contract under the Financial Investment Services and Capital Markets Act (limited to where the relevant corporation has the authority to give instructions as to the management of assets) or a privately placed fund under that Act (limited to where the relevant corporation exercises de facto influence on the management of assets)); |
| 2. | A decision, if the decision is made to acquire, or dispose of, the shares and investment certificates of another corporation (excluding affiliates) in an amount that is at least 5/100 of the equity capital; |
| 3. | A decision, if the decision is made to give or take a gift in an amount that is at least 1/100 of the equity capital; |
| 4. | A decision, if the decision is made to provide collateral or a debt guarantee (excluding any debt guarantee provided to guarantee the performance of a contract, etc. and the payment of tax) for a third person in an amount that is at least 5/100 of the equity capital; |
| 5. | A decision, if the decision is made to exempt, underwrite, or be exempted from, a debt in an amount that is at least 5/100 of the equity capital; |
| 6. | A decision, if the decision is made to increase or decrease the capital; |
| 7. | A decision, if the decision is made to issue convertible bonds or bonds with warrant. |
| (5) | "Matters prescribed by Presidential Decree" in Article 27 (1) 3 of the Act means the following matters: |
| (6) | Except as provided in paragraphs (1) through (5), details necessary for the methods, procedures, and timing for disclosure of companies, other than listed corporations, shall be determined and publicly notified by the Fair Trade Commission. |
| Article 35 (Disclosure of Current Status of Business Groups) |
| (1) | "Company that meets the criteria prescribed by Presidential Decree" in the provision, with the exception of the subparagraphs, of Article 28 (1) of the Act means any company except a company whose total assets as of the end of the immediately preceding business year are less than 10 billion won and which is in the process of liquidation or has been suspending its business for at least one year. |
| (2) | "Matters prescribed by Presidential Decree" in the provision, with the exception of the subparagraphs, of Article 28 (1) of the Act means the following matters for a business group subject to disclosure which is designated pursuant to the former part of Article 31 (1) of the Act: |
| 1. | The following general status of its member companies: |
| (a) | The name of the company; |
| (b) | The name of the representative; |
| (e) | Changes in affiliates for the immediately preceding one-year period; |
| (f) | The current status of executive officers; |
| (g) | The current status of operation of the board of directors; |
| (h) | Other matters equivalent to those referred to in items (a) through (g), which are determined and publicly notified by the Fair Trade Commission; |
| 2. | The current status of shareholders of its member companies; |
| 3. | The current status of investments among its member companies; |
| 4. | The current status of affiliates that are not holding companies, etc., among its member companies (limited to where the combined total assets of the holding companies, etc. are at least 50/100 of the aggregate of the total assets of the member companies of the business group (or the total capital or capital stock, whichever is greater, in cases of a company engaging in financial business or insurance business)); |
| 5. | The current status of cross shareholding among its member companies; |
| 6. | The current status of circular shareholding among its member companies; |
| 7. | The current status of debt guarantees provided among its member companies; |
| 8. | Whether a member company which is engaging in financial business or insurance business has exercised voting rights as prescribed in Article 25 (1) of the Act: Provided, That the exercise of voting rights in the shares of the company engaging in financial business or insurance business shall be excluded herefrom; |
| 9. | The current status of funds, assets, goods, or services provided or traded between its member companies and their related parties; |
| 10. | Where the amount of goods or services traded with its affiliate during a business period (referring to a business quarter in cases of a listed company, and a business year in cases of an unlisted company) is at least 5/100 of the sales for the same business period or at least five billion won, the details of the goods or services traded with the affiliate. |
| (3) | "Matters prescribed by Presidential Decree, such as the composition of shareholders" in Article 28 (2) 1 of the Act means the following: Provided, That where the same person refuses to provide information on the following matters regarding an overseas affiliate, on the condition that his or her relative has made investment, severally or jointly with other relatives, in the overseas affiliate; that the overseas affiliate does not own the shares of a domestic affiliate directly or by means specified in paragraph (4); and that the overseas affiliate has no direct or indirect transaction with domestic affiliates for the immediately preceding one-year period; the relevant matters shall be excluded herefrom: |
| 1. | The name of the company; |
| 2. | The name of the representative; |
| 3. | The country where the overseas affiliate is located; |
| 5. | The current status of shareholders: Provided, That where the provision or disclosure of information regarding shareholders is prohibited by statutes or regulations of the country where the overseas affiliate is located, such information shall be excluded herefrom; |
| 6. | Other matters equivalent to those referred to in subparagraphs 1 through 5, which are determined and publicly notified by the Fair Trade Commission as necessary for disclosure. |
| (4) | "Methods prescribed by Presidential Decree" in Article 28 (2) 2 of the Act means methods of owning shares of an overseas affiliate that directly owns shares of a domestic member company of a business group subject to disclosure designated pursuant to the former part of Article 31 (1) of the Act, by linking them through investments between at least one overseas affiliate. |
| (5) | "Matters prescribed by Presidential Decree" in Article 28 (2) 2 of the Act means the following: |
| 1. | Matters specified in paragraph (3) 1 through 5; |
| 2. | The current status of investments in domestic affiliates or in other overseas affiliates; |
| 3. | Other matters equivalent to those prescribed in subparagraphs 1 and 2, which are determined and publicly notified by the Fair Trade Commission as necessary for disclosure. |
| (6) | "Reasons prescribed by Presidential Decree, such as unconsciousness" in the proviso, with the exception of the subparagraphs, of Article 28 (2) of the Act means the following: |
| 2. | Judicial declaration of disappearance; |
| 3. | Decision on the commencement of adult guardianship; |
| 4. | Other reasons equivalent to those prescribed in subparagraphs 1 through 3, which are recognized by the Fair Trade Commission as reasons which make it practically impossible for the same person to make a disclosure. |
| (7) | A disclosure under Article 28 (1) and (2) of the Act shall be made on a quarterly, semiannual, or annual basis, as determined and publicly notified by the Fair Trade Commission. |
| (8) | Except as provided in paragraphs (1) through (7), details necessary for the methods and procedures, etc. for disclosing the current status of business groups, etc. shall be determined and publicly notified by the Fair Trade Commission. |
| Article 36 (Resolutions by Board of Directors of Public Interest Corporations That Are Related Parties and Disclosure Thereof) |
| (1) | The scale of a trade under the items of Article 29 (1) 2 of the Act shall be an amount (in cases falling under item (d) of that subparagraph, referring to the aggregated amount of trades to be performed in a quarter) equal to or greater than the lower of the following: <Amended on May 30, 2023> |
| 2. | An amount equivalent to 5/100 of the greater of the total capital or capital of a public interest corporation that intends to engage in a trade under the items of Article 29 (1) 2 of the Act (500 million won if the amount is less than 500 million won). |
| (2) | "Affiliate prescribed by Presidential Decree" in Article 29 (1) 2 (d) of the Act means an affiliate provided in Article 33 (2). |
| (3) | Except as provided in paragraphs (1) and (2), details necessary for the methods, procedures, and timing for resolution by the board of directors of a public interest corporation, and disclosure thereof shall be determined and publicly notified by the Fair Trade Commission. |
| Article 37 (Reporting on Stock Ownership Status) |
| (1) | A company that intends to file a report under Article 30 (1) of the Act shall submit a report to the Fair Trade Commission by May 31 every year, stating the following: Provided, That a member company of a business group newly designated as a business group subject to disclosure pursuant to the former part of Article 31 (1) of the Act, shall submit a report (limited to the year in which such business group is newly designated as a business group subject to disclosure) within 30 days after the date it receives notice under Article 38 (5): |
| 1. | The outline of the relevant company, such as its name, capital stock, and total assets; |
| 2. | The number of shares of the relevant company that its affiliates and related parties own; |
| 3. | The shareholding status of the relevant company in domestic companies. |
| (2) | A report provided in paragraph (1) shall be accompanied by the following documents: |
| 1. | A statement of shares owned by the relevant company; |
| 2. | A table describing the status of cross shareholding with affiliates; |
| 3. | An audit report of the relevant company for the immediately preceding business year. |
| (3) | Where any reason for changes arises in a domestic member company of a business group subject to disclosure designated pursuant to the former part of Article 31 (1) of the Act due to acquisition of shares, etc., the company that has filed a report under Article 30 (1) of the Act shall submit a report including the details of such change to the Fair Trade Commission within 30 days after the following date: |
| 1. | Where the company becomes to own shares or increases its shareholding ratio: The date specified in the items of subparagraph 1 of Article 17; |
| 2. | Where the company appoints an executive officer: The date the appointment of an executive officer is resolved at a general meeting of its shareholders or a general meeting of its employees; |
| 3. | Where the company participates in the establishment of a new company: The date the establishment of the new company is registered; |
| 4. | In cases other than those specified in subparagraphs 1 through 3 where the entitlement to exercise a dominant influence arises: The date the entitlement to exercise a dominant influence over the management of the relevant member company arises under a contract or an agreement, etc. with major shareholders. |
| (4) | A company that intends to file a report under Article 30 (2) of the Act shall submit to the Fair Trade Commission a report that includes the amount of a debt guarantee provided by the relevant company, not later than May 31 each year, accompanied by the following documents: Provided, That a member company of a business group newly designated as a business group subject to limitations on cross shareholding pursuant to the former part of Article 31 (1) of the Act, shall submit a report thereon (limited to the year in which such business group is newly designated as a business group subject to disclosure) within 30 days after the date it receives notice under Article 38 (5): |
| 1. | A detailed statement of debt guarantees provided by the relevant company for its affiliates and details of changes in debt guarantees for the immediately preceding one-year period; |
| 2. | A detailed statement of debt guarantees that the relevant company received from its affiliates and details of changes in debt guarantees for the immediately preceding one-year period; |
| 3. | Written certificates prepared by the domestic financial institutions specified in the items of subparagraph 18 of Article 2 of the Act in the form set forth by the Fair Trade Commission, to verify the amount of debt guarantees provided by the relevant company and details specified in subparagraphs 1 and 2. |
| Article 38 (Designation of Business Groups Subject to Disclosure and Business Groups Subject to Limitations on Cross Shareholding) |
| (1) | A business group subject to disclosure under the former part of Article 31 (1) of the Act (hereinafter referred to as "business group subject to disclosure") shall be a business group, the combined total assets (in cases of a company engaging in financial business or insurance business, referring to the total capital or capital stock, whichever is greater; and in cases of a newly established company that has no balance sheet for the immediately preceding business year, referring to the paid-in capital as of the date of designation; hereafter in this Article, the same shall apply) of domestic member companies of which, as presented on the balance sheet for the business year immediately preceding the designation as a business group subject to disclosure, are at least five trillion won: Provided, That the following business groups shall be excluded from the designation of a business group subject to disclosure: |
| 1. | A business group engaging only in financial business or insurance business; |
| 2. | A business group in which a company engaging in financial business or insurance business is the same person; |
| 3. | A business group, among whose member companies the combined total assets of the following companies are at least 50/100 of the total assets of the entire business group: Provided, That a business group whose member companies’ combined total assets, except the following companies, are at least five trillion won shall be excluded herefrom: |
| 5. | A business group, all of whose member companies fall under any of the following: |
| (c) | A special-purpose company in which a person specified in item (b) has invested; |
| (e) | A company controlled by a person specified in item (d); |
| 6. | A business group, all of whose member companies fall under any of the following; in such cases, at least one company specified in items (a) and (b) shall be included: |
| (a) | A company engaging in financial business or insurance business; |
| (b) | A company falling under any of the items of subparagraph 5. |
| (2) | Paragraph (1) shall apply mutatis mutandis to the criteria for designation of business groups subject to limitations on cross shareholding under the former part of Article 31 (1) of the Act (hereinafter referred to as "business groups subject to limitations on cross shareholding") and the criteria for exclusion from designation of such business groups. In such cases, "five trillion won" in the main clause, with the exception of the subparagraphs, of paragraph (1) and in subparagraph 3 of that paragraph shall be construed as "amount equivalent to 5/1,000 of the gross domestic production", respectively. |
| (3) | The Fair Trade Commission shall designate business groups that newly meet the criteria prescribed in paragraph (1) or (2) as business groups subject to disclosure or business groups subject to limitations on cross shareholding by May 1 (or May 15 in unavoidable circumstances) each year, pursuant to the former part of Article 31 (1) of the Act; and shall exclude such designated business groups from being subject to disclosure or limitations on cross shareholding where the groups cease to meet the criteria prescribed in paragraph (1) or (2). |
| (4) | Where a business group designated as a business group subject to disclosure or business group subject to limitations on cross shareholding under paragraph (3) falls under any of the following cases, the Fair Trade Commission may exclude such business group from being subject to disclosure or limitations on cross shareholding when relevant grounds arise: |
| 1. | Where it falls under the main clause, with the exception of the items, of paragraph (1) 3 after the date of designation: Provided, That if the combined total assets of companies, other than those specified in paragraph (1) 3 (a) or (b), are at least 3.5 trillion won, such business group shall not be excluded from being subject to disclosure, and if the combined amount is at least the amount equivalent to 35/10,000 of the gross domestic production, such business group shall not be excluded from being subject to limitations on cross shareholding; |
| 2. | Where the combined total assets of domestic member companies of the relevant business group are decreased to less than 3.5 trillion won (limited to business groups subject to disclosure) due to a change of its member companies; |
| 3. | Where the combined total assets of domestic member companies of the relevant business group are decreased to less than the amount equivalent to 35/10,000 of the gross domestic production (limited to business groups subject to limitations on cross shareholding) due to a change of its member companies. |
| (5) | Where the Fair Trade Commission newly designates, or excludes from designation, any business group subject to disclosure or business group subject to limitations on cross shareholding under paragraph (3) or (4), it shall immediately give written notice of such fact to the member companies of the relevant business group and the public interest corporations that are related parties to the same person who controls the companies. |
| (6) | Where any change occurs in relation to any member company of the relevant business group after designation under paragraph (3) or (4), the Fair Trade Commission shall give written notice of such fact to the member companies. |
| (7) | "Materials prescribed by Presidential Decree, such as the general status of a company, the composition of shareholders and executive officers of a company, the current status of related parties, and the current status of shareholdings" in Article 31 (4) of the Act means the following materials: |
| 1. | The general status of a company; |
| 2. | The composition of shareholders and executive officers of a company; |
| 3. | The current status of related parties; |
| 4. | The shareholding status; |
| 6. | An audit report: Provided, That in cases of a company not subject to an external audit under the Act on External Audit of Stock Companies, it refers to the statement of tax adjustment, and if there is no statement of tax adjustment, it refers to a settlement of accounts; |
| 7. | Other materials determined and publicly notified by the Fair Trade Commission as necessary to verify the materials specified in subparagraphs 1 through 6. |
| (8) | Except as provided in paragraphs (1) through (7), details necessary for designating, and excluding from designation, business groups subject to disclosure or business groups subject to limitations on cross shareholding, shall be determined and publicly notified by the Fair Trade Commission. |
| Article 39 (Presumptive Date of Inclusion and Notice of Affiliates) |
"Date prescribed by Presidential Decree" in Article 33 of the Act means the following dates: | 1. | In cases of a company which is not included in the member companies of a business group as at the time the business group is designated as a business group subject to disclosure, although it should have been included therein: The date the business group is designated and notified of the designation; |
| 2. | In cases of a company which is not included in the member companies of a business group on or after the date the business group is designated as a business group subject to disclosure, although it should have been included therein: The first day of the month following the month during which a cause for becoming a member company of the relevant business group subject to disclosure arises. |
| Article 40 (Requiring Relevant Institutions to Verify Materials) |
| (1) | Where the Fair Trade Commission requests the verification or examination of materials under Article 34 of the Act, it shall do so in writing specifying the following: |
| 1. | The purpose of a request; |
| 2. | The scope of materials or examination; |
| 3. | Methods of verifying or examining the materials; |
| 4. | Other matters equivalent to those prescribed in subparagraphs 1 through 3, which are deemed necessary by the Fair Trade Commission to verify or examine materials. |
| (2) | "Institutions prescribed by Presidential Decree" in subparagraph 4 of Article 34 of the Act means the following institutions: |
| Article 41 (Scope of Information Disclosed in Relation to Current Status of Business Groups Subject to Disclosure) |
| (1) | "Information prescribed by Presidential Decree" in Article 35 (1) 1 of the Act means the following: |
| 1. | The names, business details, major shareholders, executive officers, financial standings, and other general status of the member companies of a business group subject to disclosure; |
| 2. | The composition and operation of the board of directors of member companies of a business group subject to disclosure and the committees established under the board of directors under Article 393-2 of the Commercial Act, the method of exercising voting rights at general meetings of shareholders, and other information about their current corporate governance. |
| (2) | "Information prescribed by Presidential Decree" in Article 35 (1) 2 of the Act means the following: |
| 1. | The current status related to investments, such as shareholding status among member companies of a business group subject to disclosure, or between a member company of a business group subject to disclosure and its related parties; |
| 2. | The current status of debt guarantees provided among member companies of a business group subject to limitations on cross shareholding; |
| 3. | The current status of transactions of funds, securities, assets, goods, services, and others among member companies of a business group subject to disclosure or between a member company of a business group subject to disclosure and its related parties. |
| Article 42 (Types of, and Standards for, Acts of Circumventing Law) |
Acts of circumventing law prohibited pursuant to Article 36 (1) of the Act shall be the following acts committed by a member company of a business group subject to limitations on cross shareholding: | 1. | Bearing debts under the same terms and conditions without releasing its affiliate from existing debts to any of the domestic financial institutions specified in the items of subparagraph 18 of Article 2 of the Act; |
| 2. | Providing a debt guarantee for any other company or an affiliate of such other company in return for requiring such other company to provide a debt guarantee for an affiliate of the member company; |
| 4. | Acquiring or owning shares of its affiliate that has acquired or owned its shares, under a third person's name and on its own account; |
| (a) | Shares that constitute a shareholding in an affiliate forming circular shareholding which is prohibited under Article 22 (1) of the Act; |
| (b) | Shares that constitute an additional shareholding that a member affiliate of a group of circular shareholding companies has in an issuing company, which is prohibited under Article 22 (1) of the Act; |
| 6. | Acquiring or owning shares, which would constitute shares specified in subparagraph 5 (a) or (b) if acquired or owned by it, under a third person's name and on its own account; |
| 7. | Other acts equivalent to those provided in subparagraphs 1 through 6, which are determined and publicly notified by the Fair Trade Commission as necessary to prevent an act of circumventing law. |
| Article 43 (Publishing Facts of Receiving Corrective Orders) |
| (1) | Article 12 shall apply mutatis mutandis to publication orders under Article 37 (1) 6 of the Act. |
| (2) | "Balance sheet prescribed by Presidential Decree" in Article 38 (3) 1 of the Act means the balance sheet that reveals the first violation of Article 18 (2) through (5) or 20 (2) or (3) of the Act: Provided, That where a violation of the Act is not revealed by the balance sheet because the violation (excluding a violation of the Act prescribed in Article 18 (2) 1 of the Act) is corrected before the balance sheet is prepared, it means the balance sheet that is prepared as of the date such violation of the Act is committed. |
CHAPTER V RESTRICTIONS ON ILLEGAL CARTEL CONDUCT
| Article 44 (Criteria for Cartel Conduct) |
| (1) | "Matters prescribed by Presidential Decree" in Article 40 (1) 8 of the Act means the following: |
| 1. | The ratio of successful bidding or auctioning; |
| 2. | Methods of design or construction; |
| 3. | Other matters that constitute competition factors in bidding or auction. |
| (2) | "Information prescribed by Presidential Decree" in Article 40 (1) 9 of the Act means the following information regarding goods or services: |
| 2. | Quantities delivered, inventoried, or sold; |
| 3. | Terms and conditions of transactions or payment of proceeds and compensations. |
| Article 45 (Exclusion from Application of Cartel Conduct) |
"Requirements prescribed by Presidential Decree" in the provision, with the exception of the subparagraphs, of Article 40 (2) of the Act means the following requirements: | 1. | In the case of Article 40 (2) 1 of the Act: All of the following requirements shall be satisfied: |
| (a) | A substantial number of enterprises in the relevant industry is likely to suffer difficulties in business activities due to economic recession; |
| (b) | The supply capacity of the relevant industry shall be remarkably in an excessive state or the production efficiency or international competitiveness shall be on a sharp decline due to obsolescence of the manufacturing facilities or methods; |
| (c) | It is impossible to overcome the situations specified in item (a) or (b) by the rationalization of enterprises; |
| (d) | The cartel conduct shall be more effective in industrial restructuring than in competition restrictions; |
| 2. | In the case of Article 40 (2) 2 of the Act: All of the following requirements shall be satisfied: |
| (a) | The relevant research and technological development shall be essential to reinforce industrial competitiveness and shall have far-reaching effects on the economy; |
| (b) | The scale of investment required for such research and technological development shall be too big to be made by a single business entity; |
| (c) | The cartel conduct shall be necessary for diversifying risks due to the uncertainty of the results of research and technological development; |
| (d) | The cartel conduct shall be more effective in research and technological development than in competition restrictions; |
| 3. | In the case of Article 40 (2) 3 of the Act: All of the following requirements shall be satisfied: |
| (a) | The cartel conduct shall help rationalize trade terms and conditions, thereby contributing manifestly to improving productivity, facilitating transactions, and enhancing consumers' convenience or interests; |
| (b) | Details of the rationalization of trade terms and conditions shall be technically and economically feasible for most business entities in the relevant business field; |
| (c) | The cartel conduct shall be more effective in rationalization of trade terms and conditions than in competition restrictions; |
| 4. | In the case of Article 40 (2) 4 of the Act: All of the following requirements shall be satisfied: |
| (a) | The cartel conduct shall clearly help small and medium enterprises to improve their productivity such as having better quality and technological ability, or to strengthen their bargaining power on the trade terms and conditions; |
| (b) | All the business entities that participate in the cartel conduct (hereinafter referred to as "participating business entity") shall be small and medium enterprises; |
| (c) | It would be difficult to efficiently compete with, or fight against, large enterprises by means other than the cartel conduct. |
| (2) | Notwithstanding paragraph (1), the Fair Trade Commission shall not grant authorization under Article 40 (2) of the Act with regard to any of the following cartel conduct: |
| 1. | Where cartel conduct exceeds the extent necessary for achieving its objective; |
| 2. | Where cartel conduct is likely to unfairly undermine the interests of consumers and related business entities; |
| 3. | Where there is unfair discrimination among participating business entities in connection with the details of the cartel conduct; |
| 4. | Where participation in, or withdrawal from, the cartel conduct is restricted unfairly. |
| Article 46 (Procedures and Methods for Authorization of Cartel Conduct) |
| (1) | A person who intends to obtain authorization to engage in cartel conduct under Article 40 (2) of the Act shall select a representative business entity (hereinafter referred to as "representative business entity of the cartel conduct") and shall file an application containing the following with the Fair Trade Commission: |
| 1. | The name and location of the applicant (including the name and address of its representative); |
| 2. | The details of the cartel conduct; |
| 3. | The reasons for the cartel conduct; |
| 4. | The duration of the cartel conduct; |
| 5. | The following matters regarding participating business entities: |
| (a) | The number of participating business entities; |
| (b) | Business details of participating business entities; |
| (c) | The names and locations of participating business entities (including the names and addresses of their representatives). |
| (2) | An application under paragraph (1) shall be accompanied by the following documents: |
| 1. | Documents evidencing that the cartel conduct meets the requirements specified in Article 45 (1); |
| 2. | Documents evidencing that the cartel conduct does not fall under any subparagraph of Article 45 (2); |
| 3. | Business reports, balance sheets, and income statements of participating business entities for the most recent two years; |
| 4. | A copy of the agreement or written resolution on the cartel conduct; |
| 5. | Other documents determined and publicly notified by the Fair Trade Commission as necessary for the authorization of cartel conduct. |
| (3) | Upon receipt of an application for authorization under Article 40 (2) of the Act, the Fair Trade Commission shall determine whether to grant authorization within 30 days (excluding the period of disclosure specified in paragraph (4)) from the date of application: Provided, That the Fair Trade Commission may extend the processing period by up to 30 days, if such extension is deemed necessary in light of the details of an application for authorization, the effect of the authorization, etc. |
| (4) | Where the Fair Trade Commission deems it necessary to grant authorization under Article 40 (2) of the Act, it may disclose the details of the application for authorization for up to 30 days to seek opinions from interested persons. |
| (5) | The Fair Trade Commission shall issue a certificate of authorization to an applicant when it grants authorization for cartel conduct under Article 40 (2) of the Act. |
| (6) | Where a business entity that has obtained authorization for cartel conduct under Article 40 (2) of the Act intends to change any of the matters authorized, such entity shall file an application stating the details of change and the reason therefor with the Fair Trade Commission, accompanied by the following documents; in such cases, paragraph (4) shall apply mutatis mutandis to seeking opinions from interested persons, for the authorization of change: |
| 1. | Documents evidencing that the changes comply with the requirements prescribed in Article 45 (1); |
| 2. | Documents evidencing that the changes do not fall under any subparagraph of Article 45 (2); |
| 3. | The certificate of authorization under paragraph (5). |
| (7) | Except as provided in paragraphs (1) through (6), details necessary for the procedures and methods, etc. for authorizing cartel conduct shall be determined and publicly notified by the Fair Trade Commission. |
| Article 47 (Discontinuation of Approved Cartel Conduct) |
Where any cartel conduct authorized under Article 40 (2) of the Act is discontinued, the representative business entity of the cartel conduct shall notify the Fair Trade Commission of such fact without delay.
| Article 48 (Measures to Prevent Illegal Cartel Conduct in Relation to Bidding in Public Sector) |
| (1) | "Public institutions prescribed by Presidential Decree" in Article 41 (2) of the Act means the following: |
| (2) | Information related to bidding referred to in Article 41 (2) of the Act (limited to a bid whose estimated price is at least five billion won in cases of a bid for construction works defined in subparagraph 4 of Article 2 of the Framework Act on the Construction Industry, where the number of business entities participating in the bid is no greater than 20; and at least 500 million won in other cases) shall be as follows: |
| 1. | The procurement institution and the end-user institution; |
| 2. | The kind and methods of bidding; |
| 3. | The date and time and details of the bidding announcement; |
| 4. | The estimated prices, expected prices, and low-end prices; |
| 5. | The number of bidding participants; |
| 6. | Bidding details by bidding participants; |
| 7. | The profile of the successful bidder; |
| 8. | The successful bid price; |
| 9. | The number of failed bids and the number of increase in the expected prices; |
| 10. | Other information that the Fair Trade Commission deems necessary to discover and prevent illegal cartel conduct related to bidding. |
| (3) | Where the head of a public institution specified in the subparagraphs of paragraph (1) submits information related to bidding to the Fair Trade Commission under Article 41 (2) of the Act, the matters specified in the subparagraphs of paragraph (2) shall be submitted through the integrated national electronic procurement system defined in subparagraph 4 of Article 2 of the Electronic Procurement Utilization and Promotion Act within 30 days after the determination of the successful bidder: Provided, That if the head of a public institution under the subparagraphs of paragraph (1) does not entrust the Administrator of the Public Procurement Service with a contract, he or she may submit such information in such a manner as directly entering it in an information processing system operated by the Fair Trade Commission. |
| Article 49 (Publishing Facts of Receiving Corrective Orders) |
| Article 12 shall apply mutatis mutandis to publication orders under Article 42 (1) of the Act. |
| Article 50 (Penalty Surcharges) |
| Article 13 (1) shall apply mutatis mutandis to the calculation of sales under the main clause of Article 43 of the Act. In such cases, if a violation is a bid rigging or a similar act, the contract amount shall be deemed the sales. |
| Article 51 (Leniency Criteria) |
| (1) | The scope of persons eligible for full or partial exemption from corrective measures or penalty surcharges under Article 44 (1) of the Act and the criteria therefor shall be as follows: |
| 1. | A person who files a leniency application with the Fair Trade Commission under Article 44 (1) 1 of the Act before the Commission commences an investigation shall be granted full exemption from both penalty surcharges and corrective measures, if all of the following requirements are satisfied: |
| (a) | The person shall be the first person who alone provides evidence of the illegal cartel conduct (even in cases where evidence is jointly provided by two or more business entities involved in the illegal cartel conduct, it shall be deemed to be provided by a single business entity, so long as the business entities are affiliates in a substantial control relationship or are involved in a division or business transfer, while meeting requirements determined and publicly notified by the Fair Trade Commission; hereafter in this Article the same shall apply); |
| (b) | The person shall have filed a leniency application concerning the illegal cartel conduct under circumstances that the Fair Trade Commission fails to obtain information on the illegal cartel conduct or fails to obtain sufficient evidence substantiating the illegal cartel conduct; |
| (c) | The person shall have conscientiously cooperated until the completion of an investigation, deliberation, and resolution (hereinafter referred to as "investigation, etc."; hereafter in this Article the same shall apply) including testifying all the facts related to the illegal cartel conduct and submitting related materials; |
| (d) | The person shall have ceased to engage in the illegal cartel conduct; |
| 2. | A person who cooperates in an investigation, etc. under Article 44 (1) 2 of the Act after the Fair Trade Commission commences an investigation, shall be granted full exemption from penalty surcharges or full or partial exemption from corrective measures, if all of the following requirements are satisfied: |
| (a) | The person shall have cooperated in the investigation, etc. under circumstances that the Fair Trade Commission fails to obtain information on the illegal cartel conduct or fails to obtain sufficient evidence substantiating the illegal cartel conduct; |
| (b) | The person shall meet all the requirements specified in subparagraph 1 (a), (c), and (d); |
| 3. | Where a person who has filed a leniency application under Article 44 (1) 1 of the Act before the Fair Trade Commission commences an investigation or a person who cooperates in an investigation, etc. under subparagraph 2 of that paragraph (hereafter in this Article referred to as "leniency applicant, etc.") meets all of the following requirements, the penalty surcharge may be reduced by 50/100 or the corrective measures may be partially exempted: |
| (a) | The person shall be the second person who alone provides evidence of the illegal cartel conduct (excluding where there are two business entities involved in the illegal cartel conduct and the person is one of them); |
| (b) | The person shall meet both of the requirements specified in subparagraph 1 (c) and (d); |
| (c) | A leniency applicant, etc. falling under subparagraph 1 or 2 shall have filed a leniency application or have cooperated in an investigation, etc. within two years from the date he or she filed a leniency application or cooperated in an investigation, etc.; |
| 4. | Where a person who is already subject to a penalty surcharge or corrective measure due to his or her illegal cartel conduct meets all the requirements provided in the items of subparagraph 1 or 2 with respect to another illegal cartel conduct in which he or she is involved, the penalty surcharge may be fully or partially exempted and the corrective measure may be partially exempted, against such other illegal cartel conduct. |
| (2) | A person who falls under any of paragraph (1) 1 through 4 shall not be granted full or partial exemption from corrective measures and penalty surcharges in any of the following cases: |
| 1. | Where he or she has coerced any other business entity into participating in the relevant illegal cartel conduct or into continuing such cartel conduct contrary to the will of the business entity; |
| 2. | Where he or she has involved in the illegal cartel conduct repeatedly during a certain period in violation of Article 40 (1) of the Act. |
| (3) | In any of the following cases, the Fair Trade Commission may revoke full or partial exemption from corrective measures or penalty surcharges under Article 44 (1) of the Act, as prescribed in Article 44 (3) of the Act: |
| 1. | Where a leniency applicant, etc. denies in a trial whole or part of important content of the statements or materials he or she provided in the course of an investigation, etc. conducted by the Fair Trade Commission; |
| 2. | Where any statements made, or any materials submitted, by a leniency applicant, etc. in the course of an investigation, etc. conducted by the Fair Trade Commission is found to be false in a trial; |
| 3. | Where a leniency applicant, etc. fails to testify about the fact of the cartel conduct in a trial, without good cause; |
| 4. | Where a leniency applicant, etc. fails to appear in court, without good cause; |
| 5. | Where a leniency applicant, etc. files a lawsuit seeking to deny the fact of the illegal cartel conduct concerning which he or she has filed a leniency application. |
| (4) | "Cases prescribed by Presidential Decree, such as where it is necessary for handling cases" in Article 44 (4) of the Act means the following cases: |
| 1. | Where it is necessary for handling cases; |
| 2. | Where a leniency applicant, etc. consents to the provision of information and materials under Article 44 (4) of the Act; |
| 3. | Where the information is necessary to institute a lawsuit related to the relevant case or to proceed with such lawsuit. |
| (5) | The Fair Trade Commission may, at the request of a leniency applicant, etc., separately deliberate or decide upon the relevant case to ensure that no information about the leniency applicant, etc. is disclosed under Article 44 (4) of the Act. |
| (6) | Except as provided in paragraphs (1) through (5), details necessary for the criteria, degree, methods, procedures, etc. for full or partial exemption from penalty surcharges or corrective measures shall be determined and publicly notified by the Fair Trade Commission. |
CHAPTER VI PROHIBITION OF UNFAIR TRADE PRACTICES, PRACTICES OF RESALE PRICE MAINTENANCE, AND PROVISION OF UNDUE BENEFITS TO RELATED PARTIES
| Article 52 (Types of, or Criteria for, Unfair Trade Practices) |
The types of, or criteria for, unfair trade practices under Article 45 (1) of the Act shall be as listed in attached Table 2.
| Article 53 (Fair Competition Covenant) |
Where the Fair Trade Commission receives a request for examination on a fair competition covenant under Article 45 (6) of the Act, it shall notify the requesting person of the result of the examination in writing within 60 days after the date of such request.
| Article 54 (Prohibition of Provision of Undue Benefits to Related Parties) |
| (1) | The types of, or criteria for, prohibited acts under the subparagraphs of Article 47 (1) of the Act shall be as listed in attached Table 3. |
| (2) | "Transactions prescribed by Presidential Decree" in Article 47 (2) of the Act means any transaction specified in attached Table 4. |
| Article 55 (Publishing Facts of Receiving Corrective Orders) |
| Article 12 shall apply mutatis mutandis to publication orders under Article 49 (1) of the Act. |
| Article 56 (Penalty Surcharges) |
| (1) | Article 13 (1) shall apply mutatis mutandis to the calculation of sales under the main clause of Article 50 (1) of the Act. |
| (2) | "Sales prescribed by Presidential Decree" in the main clause of Article 50 (2) of the Act means the average sales (hereinafter referred to as "average sales") for the three immediately preceding business years of the relevant business entity: Provided, That the sales earned from the commencement of business to the last day of the immediately preceding business year shall be converted to the annual average sales, if three years have not elapsed since the relevant business entity commenced business as of the first day of the relevant business year; and the sales earned from the commencement of business to the date of the violation shall be converted to the annual sales, if the relevant business entity commences business during the relevant business year. |
| (3) | Except as provided in paragraph (2), matters necessary for calculating average sales shall be determined and publicly notified by the Fair Trade Commission. |
CHAPTER VII TRADE ASSOCIATIONS
| Article 57 (Publishing Facts of Receiving Corrective Orders) |
| Article 12 shall apply mutatis mutandis to publication orders under Article 52 (1) of the Act. |
| Article 58 (Penalty Surcharges) |
| Article 13 (1) shall apply mutatis mutandis to the computation of sales under the main clauses of Article 53 (2) and (3) of the Act. In such cases, if a violation is a bid rigging or a similar act, the contract amount shall be deemed the sales. |
CHAPTER VIII ENFORCEMENT AGENCY
| Article 59 (Composition of Subcommittees) |
| (1) | Up to five subcommittees shall be established in the Fair Trade Commission under Article 58 of the Act. |
| (2) | The chairperson of the Fair Trade Commission (hereinafter referred to as the "chairperson") may designate members of each subcommittee and change the members, if necessary. |
| (3) | Where there are grounds for exclusion of, challenge to, or refrainment by, a member of a subcommittee under Article 67 of the Act with regard to a specific case, the chairperson may require another subcommittee to deliberate on the relevant case or may designate a member of another subcommittee to become a member of the relevant subcommittee only for the relevant case. |
| Article 60 (Functional Division of Subcommittees) |
The chairperson may allocate functions to each subcommittee and change such functions, if necessary.
| Article 61 (Challenge to, or Refrainment by, Members) |
| (1) | A person who intends to file a request for a challenge under Article 67 (2) of the Act shall file it with the chairperson, specifying the grounds therefor. |
| (2) | The grounds for a challenge shall be clarified in writing not later than three days after the date of filing a request for the challenge. |
| (3) | A member subject to a challenge under the former part of Article 67 (2) of the Act shall without delay submit to the chairperson his or her statement of opinion on the request for the challenge. |
| (4) | Where a member intends to refrain under Article 67 (3) of the Act, he or she shall obtain permission therefor from the chairperson. |
| Article 62 (Allowances for Commissioners) |
Part-time commissioners of the Fair Trade Commission may be paid allowances and other necessary expenses within the budget.
CHAPTER IX ESTABLISHMENT OF KOREA FAIR TRADE MEDIATION AGENCY AND DISPUTE MEDIATION
| Article 63 (Qualifications for Members of Fair Trade Dispute Mediation Council) |
| (1) | "Public official meeting the requirements prescribed by Presidential Decree" in Article 73 (4) 1 of the Act means a public official of Grade IV or higher (including public officials who are members of the Senior Executive Service under the State Public Officials Act). |
| (2) | "Period prescribed by Presidential Decree" in Article 73 (4) 2 through 4 of the Act means seven years, respectively. |
| Article 64 (Meetings of Fair Trade Dispute Mediation Council) |
| (1) | Where the chairperson of the Fair Trade Dispute Mediation Council (hereinafter referred to as the "Council") under Article 73 (1) of the Act intends to convene a meeting of the Council, he or she shall notify in writing members of the Council of the date, time, venue, and agenda items of the meeting at least seven days before the meeting: Provided, That they may be notified before a meeting in cases of emergency or unavoidable situations. |
| (2) | No meeting of the Council shall be open to the public: Provided, That if deemed necessary by the chairperson of the Council, meetings of the Council may be open to business entities that are the parties to a dispute to be mediated (hereinafter referred to as "disputing parties") and other interested parties. |
| Article 65 (Request for Mediation) |
| (1) | A person who intends to file a request for dispute mediation under Article 76 (1) of the Act shall submit to the Council a document stating the following (hereinafter referred to as "request for dispute mediation"): |
| 1. | The names and addresses of the disputing parties (referring to the names of corporations, the addresses of their main offices, and the names and addresses of their representatives, where disputing parties are corporations); |
| 2. | The purport of, and the grounds for, the request for dispute mediation; |
| 3. | The name and address of his or her representative (limited to where he or she has a representative). |
| (2) | A request for dispute mediation shall be accompanied by the following documents: |
| 1. | A document evidencing the grounds for the request for dispute mediation as well as the facts; |
| 2. | A letter of attorney of the claimant of the request for dispute mediation (limited to where he or she has a representative); |
| 3. | Other evidencing documents or materials necessary for mediating the dispute. |
| (3) | Upon receipt of a request for dispute mediation under Article 76 (1) of the Act, the Council shall issue a receipt to the disputing party who is the claimant and shall send copies of documents related to the request for dispute mediation to the Fair Trade Commission and the other disputing parties. |
| (4) | Where the Council is entrusted with dispute mediation from the Fair Trade Commission under Article 76 (2) of the Act, it shall inform the disputing parties of such fact. |
| (5) | Where the Council deems a request for dispute mediation filed under Article 76 (1) of the Act or entrustment of dispute mediation made under paragraph (2) of that Article incomplete, the chairperson may require supplementation thereof within a fixed reasonable time. In such cases, the period needed for supplementation shall not be included in the period prescribed in Article 77 (4) 2 of the Act. |
| Article 66 (Selection of Representatives) |
| (1) | Where several business entities jointly request dispute mediation over the same issue, they may designate up to three representatives among claimants. |
| (2) | Where claimants do not appoint their representatives under paragraph (1), the chairperson of the Council may recommend them to appoint their representatives. |
| (3) | Where claimants select or replace a representative, they shall notify the chairperson of the Council of such fact without delay. |
| Article 67 (Verifying Facts from Disputing Parties) |
| (1) | Where the Council intends to summon disputing parties under Article 77 (2) of the Act, it shall determine the time and place and notify the disputing parties of them by seven days prior to the date they are required to appear: Provided, That where the disputing parties agree in advance or any urgent situation exists, such parties may be notified prior to the date they are required to appear. |
| (2) | Where there exist unavoidable circumstances that prevent any of the disputing parties notified as prescribed in paragraph (1) from appearing before the Council, the relevant party may submit his or her opinions in advance to the Council. |
| Article 68 (Notification of Lawsuit) |
Where any of the disputing parties initiates a lawsuit over the relevant case after filing a request for dispute mediation, the party shall without delay inform the Council of such fact.
| Article 69 (Dismissal of Request for Dispute Mediation without Prejudice) |
| (1) | "Act meeting the criteria prescribed by Presidential Decree" in Article 77 (3) 3 of the Act means any act involving a suspected violation of Article 45 (1) 9 of the Act. |
| (2) | Where the Council dismisses a request for mediation without prejudice under Article 77 (3) of the Act or terminates the mediation process under paragraph (4) 2 or 3 of that Article, it shall prepare a report on termination of dispute mediation stating the following and shall submit a copy of the report accompanied by relevant documents to the Fair Trade Commission: |
| 1. | The general status of disputing parties; |
| 2. | Details of the dispute; |
| 3. | Issues raised in the mediation; |
| 4. | Grounds for dismissing the request for mediation without prejudice or for terminating the mediation process. |
| (3) | Where the mediation is resolved under Article 78 (1) or (2) of the Act, the Council shall prepare a mediation report stating the following and then file a report on the outcomes of the mediation accompanied by a copy of the mediation report and relevant documents with the Fair Trade Commission: |
| 1. | Matters prescribed in paragraph (2) 1 through 3; |
| 2. | Outcomes of the mediation. |
| Article 70 (Operating Rules of Council) |
Except as provided in this Decree, matters necessary for the operation and organization of the Council shall be determined by the chairperson of the Council, after resolution of the Council.
CHAPTER X PROCEDURES FOR INVESTIGATIONS
| Article 71 (Methods of Reporting Violations) |
A person who intends to report a violation under Article 80 (2) of the Act shall submit a document stating the following to the Fair Trade Commission: Provided, That a report may be filed by telephone or orally in cases of emergency or unavoidable situations: | 1. | The name and address of the person who files a report; |
| 2. | The address of the person reported, the representative’s name, and business details; |
| 3. | Details of the violation committed by the person reported; |
| 4. | Other matters deemed necessary by the Fair Trade Commission for clarifying the details of the violation. |
| Article 72 (Date of Commencement of Investigation of Illegal Cartel Conduct) |
| (1) | "Investigation commencement date prescribed by Presidential Decree" in Article 80 (5) 1 of the Act means the following: |
| 1. | Where the Fair Trade Commission commences an investigation ex officio under Article 80 (1) of the Act (only applicable where an investigation commences without or prior to the filing of a report under subparagraph 2): The date a disposition is rendered or the date an investigation is conducted under Article 81 (1) or (2) of the Act, whichever is earlier; |
| 2. | Where the Fair Trade Commission commences an investigation upon receipt of a report under Article 80 (2) of the Act (including a leniency application under Article 44 (1) 1 of the Act): The date the report is received. |
| (2) | Notwithstanding paragraph (1), where a violation of the Act continues as of the date specified in the subparagraphs of that paragraph, the date the relevant violation of the Act ends shall be deemed the investigation commencement date. |
| Article 73 (Investigations by the Fair Trade Commission) |
| (1) | Where the Fair Trade Commission intends to summon a party, interested person, or witness to hear their opinions under Article 81 (1) 1 of the Act, it shall issue a written summons stating the following: |
| 2. | The name of the person summoned; |
| 3. | The time and place to appear. |
| (2) | Where the Fair Trade Commission intends to designate an appraiser under Article 81 (1) 2 of the Act, it shall do so in writing stating the following: |
| 2. | The name of the appraiser; |
| 3. | Objectives and details of appraisal; |
| 4. | The period of appraisal. |
| (3) | Where the Fair Trade Commission intends to require a report on costs and management status or to order the submission of other necessary materials or articles under Article 81 (1) 3 of the Act, it shall do so in writing stating the following: Provided, That it may do so orally to business entities, trade associations, or their executive officers and employees who attend a meeting of the Fair Trade Commission: |
| 2. | The due date and time for reporting or submission; |
| 3. | Matters to be reported or submitted. |
| Article 74 (Payment of Expenses) |
The Fair Trade Commission may pay necessary expenses within the budget, where the Commission summons an interested person or witness under Article 81 (1) 1 of the Act or commissions an appraiser under subparagraph 2 of that paragraph.
| Article 75 (Investigations by Affiliated Public Officials) |
| (1) | A public official of the Fair Trade Commission who intends to hear a statement under Article 81 (3) of the Act shall hear such statements at the office or place of business of the relevant business entity or trade association. |
| (2) | A record of statement under Article 81 (5) of the Act shall include the following: |
| 1. | The name and address of the person making a statement; |
| 2. | The date, time, and venue the statement is made; |
| 3. | Details of the statement. |
| (3) | An order to submit materials or articles or temporarily keeping the submitted materials or articles under Article 81 (6) of the Act shall be limited to cases where destruction of evidence is a concern. |
| (4) | A record of custody under Article 81 (7) of the Act shall include the following: |
| 2. | The names and quantity of the materials or articles; |
| 3. | The names and addresses of the owner and the submitting person; |
| 4. | The date the materials or articles are submitted. |
| (5) | "Objectives, period, and methods of the investigation and other matters prescribed by Presidential Decree" in Article 81 (9) of the Act means the following: |
| 1. | The objectives of the investigation; |
| 2. | The period of the investigation; |
| 3. | The subject of the investigation; |
| 4. | The methods of the investigation; |
| 5. | Sanctions for refusing, obstructing, or evading the investigation; |
| 6. | Submission of opinions or statements under Article 81 (10) of the Act. |
| Article 76 (Requests for Postponement of Investigations) |
| (1) | "Grounds prescribed by Presidential Decree" in Article 85 (1) of the Act means the following: |
| 1. | A merger, acquisition, commencement of rehabilitation procedures, bankruptcy, or other procedures equivalent thereto; |
| 2. | Seizure or temporary keeping of books or evidencing documents by a competent authority; |
| 3. | Encountering serious obstacles in conducting business of the business entity or trade association due to a fire or disaster, etc. |
| (2) | A person who intends to request postponement of the disposition made or investigation conducted by the Fair Trade Commission under Article 85 (1) of the Act shall submit documents including the following to the Fair Trade Commission: |
| 1. | The name of the business entity or the trade association, and the name and address of the representative; |
| 2. | The period for which it wants to postpone the disposition or the investigation; |
| 3. | The grounds for postponing the disposition or the investigation. |
| Article 77 (Imposition and Collection of Enforcement Fines) |
| (1) | "Average daily sales prescribed by Presidential Decree" in the main clause of Article 86 (1) of the Act means the amount calculated by dividing the amount in the following categories by the number of days in the period of the corresponding category (including the number of non-business days) as of the business year in which the end date of the implementation period determined by the Fair Trade Commission at its subcommittee meetings under the main clause of Article 86 (1) of the Act falls: |
| 1. | If the total business period is at least three years as at the last day of the immediately preceding business year: An aggregate amount of the sales of the three immediately preceding business years; |
| 2. | If the total business period is less than three years as at the last day of the immediately preceding business year: An aggregate amount of the sales from the commencement of business until the last day of the immediately preceding business year. |
| (2) | Where the Fair Trade Commission issues an order to report or submit a report by decision of a subcommittee under the main clause of Article 86 (1) of the Act, it shall give written notice of the fact that enforcement fines may be imposed and collected for failure to comply with such order. |
| (3) | The criteria for imposing enforcement fines under Article 86 (1) of the Act shall be as listed in attached Table 5. |
| (4) | Where an enforcement fine is collected under Article 16 (2) of the Act which applies mutatis mutandis in Article 86 (2) of the Act, if a submission order is not complied with even after 30 days elapse from the end date of the period specified in the submission order issued by a subcommittee, the enforcement fine may be collected every 30 days from the end date of such period. |
| Article 78 (Procedures for Recommendation for Correction) |
Where the Fair Trade Commission issues recommendations for correction under Article 88 (1) of the Act, it shall do so in writing stating the following: | 1. | Details of the violation of the Act; |
| 3. | The time limit for correction; |
| 4. | The deadline for notification on the acceptance or nonacceptance; |
| 5. | Measures to be taken in cases of nonacceptance. |
| Article 79 (Procedures for Consent Decrees) |
When adopting a consent decree under Article 89 (3) of the Act, the Fair Trade Commission shall give written notice of the fact that an enforcement fine may be imposed and collected under Article 92 of the Act if a correction scheme under the consent decree is not implemented.
| Article 80 (Entrustment of Affairs concerning Implementation Management of Consent Decrees) |
Under Article 90 (7) of the Act, the Fair Trade Commission shall entrust the Korea Fair Trade Mediation Agency under Article 72 (1) of the Act with the affairs to check whether a plan for implementing a consent decree has been actually implemented and to request the submission of materials related to the implementation of the plan, as prescribed in Article 90 (6) of the Act.
| Article 81 (Scope of Persons Entitled to Request Inspection or Copying of Materials) |
"Person prescribed by Presidential Decree, such as a party or a person who has filed a report" in the former part, with the exception of the subparagraphs, of Article 95 of the Act means the following persons: | 2. | A person who has filed a report on the case; |
| 3. | A person who files a lawsuit seeking compensation for damage under Article 109 of the Act (limited to cases where the relevant lawsuit is pending). |
| Article 82 (Procedures for, and Period of Handling of, Objections) |
| (1) | A person who intends to file an objection under Article 96 (1) of the Act shall submit to the Fair Trade Commission an application specifying the following accompanied by documents evidencing the grounds for, and details of, the objection: |
| 1. | The subject of the objection; |
| 2. | Details of the objection; |
| 3. | Grounds for filing the objection. |
| (2) | Where documents submitted pursuant to paragraph (1) are incomplete, the Fair Trade Commission may order such documents to be supplemented within a fixed period. In such cases, the period needed for supplementation (including the date the supplementation order is sent and the date the supplemented documents are received by the Fair Trade Commission) shall not be included in the period prescribed in Article 96 (2) of the Act. |
| (3) | Unavoidable circumstances under which the Fair Trade Commission may extend a period for adjudication under the proviso of Article 96 (2) of the Act shall be as follows: |
| 1. | Where an independent economic analysis, such as an investigation and examination of the scope or structure of the market, market shares, trends in exports or imports, etc., is required to determine whether the measure taken is illegal or unreasonable; |
| 2. | Where a sophisticated legal analysis or examination is required to determine whether the measure taken is illegal or unreasonable; |
| 3. | Where a new claim is made or new materials are submitted in the deliberation process of the objection, giving rise to the necessity for a long period of related investigations; |
| 4. | Where the parties, interested parties, or others fail to cooperate in the investigation, such as refusing to testify or failing to submit materials in time. |
| Article 83 (Suspension of Enforcement of Corrective Measures) |
A person who intends to make a request for the suspension of enforcement of corrective measures or for the revocation of a decision on the suspension of enforcement under Article 97 of the Act shall submit to the Fair Trade Commission a written request stating the purport of, and grounds for, the request, accompanied by documents evidencing the grounds for, or details of, the request.
CHAPTER XI IMPOSITION AND COLLECTION OF PENALTY SURCHARGES
| Article 84 (Criteria for Imposition of Penalty Surcharges) |
The criteria for imposing penalty surcharges pursuant to Articles 8, 38, 43, 50, and 53 of the Act, as prescribed in Article 102 (1) of the Act, shall be as specified in attached Table 6.
| Article 85 (Collection of Penalty Surcharges and Additional Charges) |
| (1) | When the Fair Trade Commission intends to impose a penalty surcharge pursuant to Article 102 (1) of the Act, it shall give written notice demanding payment and specifying the category of the relevant violation, the amount of the penalty surcharge, and other similar information. |
| (2) | A person who receives the notice under paragraph (1) shall pay a penalty surcharge to the receiving agency determined by the Fair Trade Commission within 60 days after the date the notice is delivered: Provided, That, if the person is unable to pay the penalty surcharge due to a force majeure event or any other unavoidable reason, he or she shall pay it within 30 days after the date such reason ceases to exist. |
| Article 86 (Threshold for Extension of Deadline for Paying Penalty Surcharges and Payment in Installments) |
| (1) | "Threshold amount prescribed by Presidential Decree" in Article 103 (1) of the Act means an amount obtained by multiplying sales specified in the following by 1/100, or one billion won: |
| 5. | The main clauses of Article 53 (2) and (3) of the Act. |
| (2) | An extension of the payment deadline under Article 103 (1) of the Act shall not exceed two years from the day immediately following the payment deadline. |
| (3) | Where payment in installments is permitted under Article 103 (1) of the Act, the interval between installment payments shall not exceed six months, and the number of installments shall not exceed six times. |
| (4) | The Fair Trade Commission shall take into account the following when extending the payment deadline of a penalty surcharge or permitting a penalty surcharge to be paid in installments under Article 103 (1) 3 of the Act: |
| 1. | Whether a person liable to pay a penalty surcharge has sustained a net loss consecutively for the three immediately preceding business years as at the time of filing an application for an extension of the payment deadline or for payment in installments; |
| 2. | Whether a person liable to pay a penalty surcharge has a debt exceeding twice the total capital as at the time of filing an application for an extension of the payment deadline or for payment in installments; |
| 3. | Other matters determined and publicly notified by the Fair Trade Commission as grounds similar to those prescribed in subparagraph 1 or 2. |
| (5) | An application for an extension of the payment deadline or for payment in installments under Article 103 (2) of the Act shall be prepared in the form determined and publicly notified by the Fair Trade Commission. |
| Article 87 (Collection of Penalty Surcharges and Disposition on Delinquency) |
| (1) | An additional charge for a delinquent penalty surcharge under Article 105 (1) of the Act shall be the amount obtained by multiplying the delinquent penalty surcharge by 75/1,000 per annum. |
| (3) | Article 25 shall apply mutatis mutandis to the entrustment of dispositions on delinquency under Article 105 (3) of the Act. |
| Article 88 (Procedures for Requesting National Taxation Information) |
| (1) | Where the Fair Trade Commission requests the Commissioner of the National Tax Service to provide information on national taxation under Article 105 (4) of the Act, it shall do so by written request accompanied by the following documents: |
| 1. | A written resolution of the Fair Trade Commission; |
| 2. | A written resolution on tax assessment and notice thereof; |
| (2) | Upon receipt of a written request made under paragraph (1), the Commissioner of the National Tax Service shall provide information on national taxation in writing within 30 days after receiving such request, unless there is a compelling reason not to do so. |
| Article 89 (Rate of Additional Payment on Refund) |
| Article 90 (Disposition on Deficits) |
"Reasons prescribed by Presidential Decree" in Article 107 (1) 6 of the Act means the following: | 2. | Where it is deemed that collection is impossible for unavoidable reasons in circumstances determined and publicly notified by the Fair Trade Commission. |
CHAPTER XII SUPPLEMENTARY PROVISIONS
| Article 91 (Payment of Monetary Awards) |
| (1) | The Fair Trade Commission may pay a monetary award, within the budget, to the first person who files a report or provides information on the following violations, and submits materials evidencing them: Provided, That the foregoing shall not apply where the person who has filed a report or the informant is a business entity that has committed such violations: |
| 1. | Submitting materials by any related party in receipt of a request for submission of materials under Article 31 (4) of the Act while omitting any member company of the business group, without good cause; |
| 2. | Illegal cartel conduct prescribed in the subparagraphs of Article 40 (1) of the Act; |
| 3. | Unfair trade practices in newspaper business (referring to the business of publishing or selling newspapers, as defined in subparagraph 1 (a) through (d) of Article 2 of the Act on the Promotion of Newspapers), among those prescribed in Article 45 (1) 1 through 8 of the Act; |
| 4. | Unfair trade practices provided in Article 45 (1) 4 of the Act; |
| 5. | Unfairly coercing executive officers and employees of his or her company or affiliates into purchasing or selling goods or services of his or her company or affiliates, among the unfair trade practices provided in Article 45 (1) 5 of the Act; |
| 6. | Unfair trade practices in the business of operating a large-scale retail store (referring to the business of selling various daily necessaries at the same store with the total area of sales floors of at least the size determined and publicly notified by the Fair Trade Commission), among unfair trade practices provided in Article 45 (1) 6 of the Act; |
| 7. | Unfair trade practices provided in Article 45 (1) 9 of the Act; |
| 8. | Provision of undue benefits to a related party provided in Article 47 (1) of the Act; |
| 9. | Prohibited acts for trade associations under Article 51 (1) 1 through 3 of the Act. |
| (2) | In the absence of special circumstances, the Fair Trade Commission shall pay a monetary award within three months from the date it determines that the act reported or informed of constitutes a violation of the Act (or the date an adjudication is made, if an objection has been filed). |
| (3) | The Fair Trade Commission may establish a deliberative committee on monetary awards for reporting in order to deliberate on matters regarding the payment of monetary awards. |
| (4) | Where any of the following facts is found after the Fair Trade Commission has paid a monetary award under paragraph (1), it may recapture the award: |
| 1. | In cases of receiving monetary awards by improper means such as evidence collection by unlawful or improper means, false reporting, false statement, and evidence forgery; |
| 2. | In cases of receiving monetary awards or valuables equivalent thereto under other statutes or regulations by the same cause; |
| 3. | Any other cases where the monetary award is given in error due to a mistake, etc. |
| (5) | Except as provided in paragraphs (1) through (4), matters necessary for the standards of, and procedures and methods for, payment and return of monetary awards, and the establishment and operation of the deliberative committee on monetary awards for reporting shall be determined and publicly notified by the Fair Trade Commission. |
| Article 92 (Re-Examination of Regulation) |
The Fair Trade Commission shall examine the appropriateness of the following matters every three years, counting from each base date specified in the following (referring to the period that ends on the day before the base date of every third year) and shall take measures, such as making improvements: <Amended on Dec. 27, 2022>
| 1. | The total assets used as standards for holding companies under the subparagraphs of Article 3 (1): January 1, 2022; |
| 1-2. | The scope of a person related to the same person under Article 4 (1) 1: January 1, 2023; |
| 2. | The scope of companies that may be excluded from the scope of a business group under Article 5: January 1, 2022; |
| 3. | Reporting on business combinations under Article 20: January 1, 2022; |
| 4. | Resolutions by the board of directors on large-scale internal trading and disclosure thereof under Article 33: January 1, 2022; |
| 5. | Disclosure of material facts by unlisted companies, etc. under Article 34: January 1, 2022; |
| 6. | Resolutions by the board of directors of public interest corporations and disclosure thereof under Article 36 (1): January 1, 2022; |
| 7. | Procedures for authorizing cartel conduct under Article 46: January 1, 2022; |
| 8. | Criteria for full or partial exemption under Article 51: January 1, 2022; |
| 9. | Substantially advantageous terms and conditions under the proviso, with the exception of the items, of subparagraphs 1 of attached Table 3 and the proviso of subparagraph 3 of that Table: January 1, 2022; |
| 10. | A considerable scale under the proviso of subparagraph 4 of attached Table 3: January 1, 2022. |
| Article 93 (Handling of Personally Identifiable Information) |
| 1. | Affairs related to investigations into the violations of the Act under Article 80 of the Act; |
| 2. | Affairs related to the payment of monetary awards under Article 91. |
CHAPTER XIII PENALTY PROVISIONS
| Article 94 (Criteria for Imposing Administrative Fines) |
Criteria for imposing administrative fines under Article 130 of the Act shall be as follows: | 1. | Administrative fines provided in Article 130 (1) 1 of the Act: Attached Table 7; |
| 2. | Administrative fines provided in Article 130 (1) 2 and 3 of the Act: Attached Table 8; |
| 3. | Administrative fines provided in Article 130 (1) 4 of the Act: Attached Table 9; |
| 4. | Administrative fines provided in Article 130 (1) 5 through 7 and (2) of the Act: Attached Table 10. |
ADDENDA <Presidential Decree No. 32274, Dec. 28, 2021>
Article 1 (Enforcement Date)
This Decree shall enter into force on December 30, 2021.
Article 2 (Applicability to Revocation of Decision on Exclusion from Persons Related to Same Person)
The amended provisions of Article 6 (3) shall begin to apply where grounds provided in the subparagraphs of that paragraph arise on or after the date this Decree enters into force. Article 3 (Applicability to Exclusion from Designation of Business Groups Subject to Disclosure and Business Groups Subject to Limitations on Cross Shareholding)
The amended provisions of Article 38 (1) 5 and 6 (including cases applied mutatis mutandis under paragraph (2) of that Article) shall begin to apply where there is a designation of a business group subject to disclosure and a business group subject to limitations on cross shareholding under the former part of Article 31 (1) of the Act on or after the date this Decree enters into force. Article 4 (Transitional Measures concerning Criteria for Total Assets of Holding Companies)
A holding company that was incorporated as, or converted into, a holding company and filed a report thereon before July 1, 2017 but ceased to meet the criteria provided in the amended provisions of Article 2 (1) 1 and 2 of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Presidential Decree No. 27529) as of July 1, 2017 (hereafter in this Article and Article 12 of the Addenda referred to as "existing holding company"), shall meet the criteria for the total assets of holding companies prescribed in the amended provisions of Article 3 (1) 1 and 2 by June 30, 2027: Provided, That where an existing holding company falls under any of the following, it shall be excluded from holding companies from the following dates: | 2. | Where it files a report on exclusion from holding companies by June 30, 2027 despite satisfying the criteria for the total assets under previous Article 2 (1) 1 and 2 (referring to the provisions before partially amended by the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Presidential Decree No. 27529)): The date the report on exclusion is filed. |
Article 5 (Transitional Measures concerning Criteria for Second-Tier Subsidiaries)
Where any of the following second-tier subsidiaries, among those that meet the requirements specified in the subparagraphs of previous Article 2 (4) (referring to the provisions before partially amended by the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Presidential Decree No. 30790)) as of June 16, 2020, continues to meet the requirements under that provisions within the scope of the existing investment in second-tier subsidiaries even on or after June 16, 2020, the criteria for such second-tier subsidiary shall be governed by previous Article 2 (4) 2 (referring to the provisions before partially amended by the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Presidential Decree No. 30790)): | 1. | A second-tier subsidiary whose shares owned by a subsidiary are the same as shares owned by the holding company of the subsidiary; |
| 2. | A second-tier subsidiary whose shares owned by a subsidiary are the same as shares owned by another subsidiary of the holding company. |
Article 6 (Transitional Measures concerning Resolutions by Board of Directors on Large-Scale Internal Trading and Disclosure Thereof)
Where a member company of a business group subject to disclosure conducts large-scale internal trading of goods or services with a subsidiary, second-tier subsidiary, or third-tier subsidiary of its holding company from July 1 to September 30, 2020, the resolution of the board of directors on the large-scale internal trading and disclosure thereof shall be governed by previous Article 17-8 (3) (referring to the provisions before partially amended by the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Presidential Decree No. 30790)). Article 7 (Transitional Measures concerning Designation of Previous Business Groups Subject to Limitations on Cross Shareholding and Notification Thereof)
Article 8 (Transitional Measures concerning Change of Subject of Rejection of Request for Dispute Mediation without Prejudice)
Article 9 (Transitional Measures concerning Imposition of Penalty Surcharges and Adjustment Thereof)
| (1) | The imposition of a penalty surcharge against illegal cartel conduct committed by a trade association which ended before June 22, 2012 shall be governed by previous attached Table 2 (referring to the provisions before partially amended by the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Presidential Decree No. 23864)). |
| (2) | The imposition of a penalty surcharge against retaliatory measures which ended before March 8, 2016 shall be governed by subparagraph 2 (a) of previous attached Table 2 (referring to the provisions before partially amended by the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Presidential Decree No. 27034)). |
| (3) | The adjustment of a penalty surcharge against a violation which was committed before October 19, 2017 shall be governed by subparagraph 2 (b) of previous attached Table 2 (referring to the provisions before partially amended by the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Presidential Decree No. 28352)). |
Article 10 (Transitional Measures concerning Rate of Additional Charges for Delinquent Penalty Surcharges)
| (1) | The rates of additional charges for delinquent penalty surcharges for a period of delinquency before June 22, 2012 shall be as follows: |
| 1. | For the period from April 1, 1999 to May 31, 2005: 4/10,000 per day; |
| 2. | For the period from June 1, 2005 to June 21, 2012: 29/100,000 per day. |
Article 11 (Transitional Measures concerning Rate of Additional Payment on Refund of Penalty Surcharges)
Articles 12 (Transitional Measures concerning Corrective Measures, Penalty Surcharges, and Penalty Provisions against Holding Companies)
| (1) | For the purpose of applying penalty surcharges (limited to violations related to cross shareholding, circular shareholding, debt guarantee, and restrictions on acts) and penalty provisions to a violation that has been committed by an existing holding company excluded from holding companies under the proviso of Article 2 of the Addenda to the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Presidential Decree No. 27529) or its subsidiaries, second-tier subsidiaries, and third-tier subsidiaries before the existing holding company was excluded from holding companies; previous Article 2 (1) (referring to the provisions before partially amended by the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Presidential Decree No. 27529)) shall apply to the criteria for the total assets of such holding company. |
| (2) | For the purpose of applying corrective measures under Article 16 (1) 6 or 7-2 of the Act (referring to the provisions before partially amended by the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Presidential Decree No. 14137); hereafter in this paragraph, the same shall apply), penalty surcharges under Articles 17 and 24-2 of the Act, corrective recommendations under Article 51 of the Act, and penalty provisions under Articles 66 through 68 of the Act to a violation that has been committed by a member company of a business group deemed to be excluded from the designation of business groups subject to limitations on cross shareholding or business groups subject to limitations on debt guarantees under Article 3 of the Addenda to the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Presidential Decree No. 27529) before September 30, 2016; previous Article 17 (1) (referring to the provisions before partially amended by the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Presidential Decree No. 27529)) shall apply to the total assets according to the criteria for designation of such business groups subject to limitations on cross shareholding or business groups subject to limitations on debt guarantees. |
Article 13 Omitted.
Article 14 (Relationship to Other Statutes or Regulations)
ADDENDA <Presidential Decree No. 33140, Dec. 27, 2022>
Article 1 (Enforcement Date)
This Decree shall enter into force on the date of its promulgation.
Article 2 (Transitional Measures concerning Requirements for Exclusion from Scope of Business Group of Independent Management Company)
Notwithstanding the amendments to the provisions, with the exception of Article 5 (1) 3 (f) (i) and (ii), the previous provisions shall apply to the base period for calculating the amount of transactions, where it is intended to determine the requirements for the ratio of the sales and purchase amount of transactions between an executive officer and any non-executive affiliated company of a company, for which a request is made to exclude the company from a business group before this Decree enters into force. Article 3 Omitted.
ADDENDA <Presidential Decree No. 33494, May 30, 2023>
Article 1 (Enforcement Date)
This Decree shall enter into force on January 1, 2024.
Article 2 (Applicability to Increase in Standard Amount for Large-Scale Internal Trading)
| (1) | The amended provisions of Article 33 (1) shall begin to apply to trades under the subparagraphs of Article 26 (1) of the Act after this Decree enters into force. |
| (2) | The amended provisions of Article 36 (1) shall begin to apply to trades under the items of Article 29 (1) 2 of the Act after this Decree enters into force. |