공정거래 사건처리절차에서의 데이터 룸 절차를 통한 자료공개 가능성: EU의 제도를 중심으로 = The Possibility of Adopting Data Room Procedure in Korean Competition Proceedings: Focused on EU Procedure

다국어 초록 (Multilingual Abstract)

Disclosure of the attachments of the Examiner’s Report to the undertaking under investigation in the competition proceedings is a very important issue from the aspect of due process. The undertaking should be able to access to the attachments to fully exercise its right of defense. However, if the confidential information of the data provider is included in the attachments, there would be a conflict between the legal interest of the undertaking's right of defense and the legal interest of the data provider's confidentiality. The problem is, under the current MRFTA and relevant guidelines, it is nearly impossible to resolve this kind of conflict within administrative proceedings, not litigation proceedings.
In this regard, in order to find the alternatives, this article takes the data room procedure of the EU which has not been introduced in detail to Korea as a research subject, reviews the purpose and detailed contents of the procedure, and then discuss how to introduce the system into Korea.
The data room procedure is one of the methods for data disclosure to prevent the leakage of confidential information of the data provider. According to the procedure, relevant files are disclosed only to a certain number of external experts and only for a limited time in the designated space where certain facilities for protection of confidentiality are prepared. And then the experts prepare a data room report in the data room and submit it to the undertaking under investigation after approval of the Commission. The procedure has been mainly used for the disclosure of quantitative data, such as basic data set of economic analysis, relied or cited by the Statement of Objection. The procedure has significant value to Korean competition proceedings because it allows the undertaking to exercise its right of defense within the scope of the protection of the confidential information for the data provider.
However, since there are some differences in the competition law system, competition proceedings, and the environment of competition law enforcement between the EU and Korea, it is highly recommended for the KFTC and other practitioners to check the feasibility of introducing the procdure into Korea before prior to the introduction of it. In this respect, this article addresses that the problem of excessive request of the procedure can be raised in Korea and that it is advisable to introduce the other legal systems of the EU competition law in order for the procedure to function effectively within the legal systems of Korea. Also this article discussed other issues that could be considered from the practical point of view prior to introducing the procedure, such as the problem of establishing trust to the procedure.

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