Respondents Will Be Allowed to Access Non-Disclosed Materials in Review Reports

Fair Trade Commission Announces Draft Administrative Guidelines for 'Inspection and Copying of Materials'
Introduction of Korean-style Data Room... Guaranteeing Access to Evidence Materials

[Asia Economy Reporter Moon Chaeseok] In the future, those subject to review by the Fair Trade Commission (FTC) will be able to access materials not disclosed in the examination report (equivalent to the prosecution's indictment).

On the 2nd, the FTC announced that it has prepared a draft of the "Guidelines for Viewing and Copying Materials" (draft guidelines) and will hold an administrative notice period until the 22nd. The draft strictly regulates the method by which the respondent can request to view or copy materials and the FTC's decision criteria.

First, the draft guidelines specify the regulations to make it easier for respondents to request viewing or copying of materials not disclosed in the examination report.

The respondent only needs to write their information and case name, the requested materials, the reason for the request, and, in the case of restricted material viewing, the necessary viewing period and information about the person who will view the materials. However, if the FTC notifies that the written request is insufficient, the respondent must supplement it within 5 days after the request.

The FTC also provides the material submitter an opportunity to submit opinions. When a request from the respondent is received, the FTC asks whether the submitter agrees to disclose the materials to the respondent.

The presiding commissioner must decide whether to allow viewing or copying within 30 days from the date the respondent requests it from the FTC. The deadline can be extended within a range of up to 10 days.

The materials requested by the respondent for viewing or copying will be fully disclosed unless they are ▲trade secret materials under the "Act on the Prevention of Unfair Competition and Protection of Trade Secrets," ▲voluntary report materials, or ▲non-disclosed materials under other laws.

To allow viewing of trade secrets if necessary, a "restricted material viewing room (data room)" will be introduced. The data room is a system introduced by the European Union (EU) competition authorities, which permits only authorized persons to view trade secrets while strictly controlling the import and export of materials.

The FTC will set the viewing subjects, time, place, and method to allow materials to be viewed under restricted conditions.

However, only external lawyers of the respondent who have been authorized by the FTC, not the respondent themselves, can view the materials under restrictions. They may enter the restricted material viewing room within the FTC on the day designated by the presiding commissioner for up to two weeks to review the materials.

The respondent's external lawyers can verify the relevance between evidence and facts of the act, as well as the accuracy of quantitative analysis contained in the examination report within this space. Only the viewing report prepared based on the verification results can be taken out of the restricted material viewing room. Trade secrets must not be directly recorded in the viewing report.

The presiding commissioner will confirm that no trade secrets are included and send the viewing report to the respondent within 7 days after the viewing period ends.

Furthermore, according to the "confidentiality obligation" stated in the draft guidelines, external lawyers cannot disclose trade secrets to anyone, including the respondent. The respondent also cannot provide trade secrets to or request them from the lawyer who viewed the materials.

The FTC must request disciplinary action from the Korean Bar Association against anyone who violates the confidentiality obligation. FTC officials are also prohibited from contacting violators for five years.

An Byeonghun, the FTC's Chief Officer in charge of adjudication, said, "In the future, respondents will be able to effectively exercise their right to defense by reviewing evidence materials before the FTC's review through the right to request viewing and copying guaranteed in the guidelines. We expect that the introduction of the restricted material viewing room will also protect the trade secrets of material submitters."

This content was produced with the assistance of AI translation services.