On September 13, 2012, the Supreme Court reversed and remanded a lower court decision which had dismissed a charge alleging price-fixing of synthetic resin products by eight petrochemical companies for “not specifying the facts of the charge in the indictment.”  In so doing, the Supreme Court held that “the lower court misunderstood the underlying legal principles for specifying the facts of the charge in the indictment and the period when the statute of limitations starts to run for criminal prosecution of unfair collaborative acts under the Monopoly Regulation and Fair Trade Act (‘MRFTA’).”

In the above decision, the Supreme Court held that “the statute of limitations for unfair collaborative acts starts to run from the date when the implemented act based on the final agreement of the unfair collaborative acts has been terminated.’”  Accordingly, such decision served as the first case where the Supreme Court confirmed its position regarding “the period when the statute of limitations starts to run for criminal prosecution of unfair collaborative acts” (Supreme Court Decision, 2010Do17418, rendered on September 13, 2012; Supreme Court Decision, 2010Do16001, rendered on September 13, 2012).

Prior to the above decision, with respect to the issue of the “period when the statute of limitations starts to run for criminal prosecution for cartel activities,” there was some dispute on whether “unfair collaborative acts” constitute an instant crime or a continuing crime, and, accordingly, there were different opinions on various related issues, such as when the statute of limitations starts to run and the period when accomplices can be found.

The lower court in this case based its decision on the principle that the “unfair collaborative acts” are established at the time an “agreement” is formed without requiring a separate implementing act under the MRFTA.  Accordingly, the lower court held that the statute of limitations starts to run from the date on which the “agreement was made” and, in the case where the unfair collaborative acts constitute a single comprehensive crime, the statute of limitations starts to run from the period when “the final individual agreement was made.”  Conversely, the Supreme Court determined that the statute of limitations for unfair collaborative acts starts to run from the “date when the implemented act based on the final agreement has been terminated,” by interpreting the law in line with the prior decisions of administrative cases which held that the termination date of unfair collaborative acts is the “date when the implemented act based on the final individual agreement was terminated” rather than the “date on which the final individual agreement was made.”

The Supreme Court in this case based its decision on (i) the legal principle for specifying the facts of the charge in the indictment (Supreme Court Decision, 2002Do807, rendered on June 20, 2002), (ii) the legal principle for when the statute of limitations starts to run for a single comprehensive crime (Supreme Court Decision 2002Do2939, rendered on October 11, 2002) and (iii) the legal principle for the termination of unfair collaborative acts which were established in various litigations seeking to cancel the decision of the Korea Fair Trade Commission (Supreme Court Decision 2007Du2852, rendered on December 13, 2007), all of which are consistent with the positions taken in the prior decisions of the Supreme Court.