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논문 기본 정보

자료유형
학술저널
저자정보
저널정보
중앙대학교 법학연구원 法學論文集 法學論文集 제33권 제1호
발행연도
2009.1
수록면
195 - 224 (30page)

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초록· 키워드

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In U.S., antitrust compliance activities of the companies remarkably made progress during the past 120 years. Consequently, the compliance program has come to be understood as a part of the Director's duty of oversight since the Caremark case (1996). This progress is mainly attributable to the compliance back-up programs of the government authorities as well as the voluntary compliance efforts of the companies, persistently pursued during the period. Taking a close look at the enforcement programs to back up to promote the corporate antitrust compliance program('CP'), we can find out a system of incentives based on severe criminal sanction against the companies which has violated the antitrust law. The first one of the incentives is sentence mitigation for the company with the effective CP. Under the terms of Federal Sentencing Guidelines amended effective November 1, 2004('USSG'), the court may reduce the fine to the company which violated the law if it has operated a CP meeting the seven minium requirements such as : ⓛ Established standards and procedures to prevent and detect criminal illegal conduct ; ② Assigning overall responsibility to oversee compliance to high level executives within the company; ③ Exercising due diligence not to delegate responsibility to employees who have a propensity to engage in illegal conduct; ④ Taking resonable steps to communicate the standards and procedures to all employees ; ⑤ Taking resonable steps to achieve compliance with the standards and procedures ; ⑥ Consistent promotion and enforcement of the CP through appropriate incentives and disciplinary measures ; ⑦ Taking resonable steps to respond appropriately to the detected illegal conduct and to prevent future violation. Second one is Leniency Program for the company which has self-detected an illegal conduct early and then disclosed it to the Department of Justice('DOJ'). Corporate leniency is available for the first company to report either before or after a government authority's investigation has begun if the certain conditions are met. It includes two major types of leniency. Type A is available only before the authority has received any information on the activity being reported from any source, while Type B is available even after the authority has received the information. And also, there are probation and consent decree. The court may order the company a term of probation if the certain condition is met such as: when it is necessary to ensure that changes are made within the organization to prevent or reduce the recurrence of similar offenses. The consent decree which is commonly applied to the antitrust illegal case also plays an important role as an enforcement program for corporate compliance. Recently, the court has often ordered for the company to initiate and maintain an effective CP. Under these circumstances, the CP seems to be generally considered as a minimum requirement for the antitrust compliance in U.S. market. In an operational perspective, DOJ has appreciated that Leniency Program is very successful enough to be called a "case generator". However, it shows how really difficult the effective CP operation is that we can not nearly at all find any fine reduction case under the USSG. Next, taking another look into the contents of the CP, they generally consist of the various activities necessary for meeting the seven requirements from the USSG. The effective CP requires not only the adoption of mandatory compliance standards and procedures but also the proactive implementation and administration of them. Accordingly, the company should establish a CP tailored to it's business environment considering the requirements above and provide the employees a manual in which describes the CP's practical contents such as: the CEO's commitment; goals and regulations particularly by the four major antitrust laws(Sherman Act, Clayton Act, Federal Trade Commission Act, and Robinson-Patman Act); importance of the CP; the standards and procedures for an effective CP; ways of detecting and self-reporting on illegal conducts; and employee education. Lastly, considering all these points regarding the U.S. CP, we can figure out several significant implications to Korean CP community. These are: First, the sanction mitigation programs which are based on severe criminal sanction against the companies violated the law would more efficiently contribute both to promote the effective CPs and to establish the compliance cultures; Second, commonly understanding the CP as a term of the Director's duty will also be essential for enhancing it's ongoing effectiveness; Third, the CEO and employees need to fully understand the importance of the CP in the perspective of integrity rather than of simple internal control and to do their best together in order that compliance will be put into the organizational culture. This would play a very important role even strengthening it's competitiveness in the long run; Fourth, the effective CP surely covers not only all employees including high-level personnel but also the agents. Therefore, the compliance activities such as education and monitoring should also be exercised by possibly tailored ways to all of them, not only the currently relevant employees. Fifth, As the compliance circumstance(the relevant laws, court decisions, markets, etc.) continues to change, the company needs to regularly review partly or wholly if the CP is still running effectively and it has responded adequately to any changes or problems. In order to implement the tasks above, the most important thing to do in the end is to review and reasonably improve the enforcement programs of the government as well as the corporate activities for competition law compliance.
#독점금지 #자율준수프로그램 #자율준수프로그램제도 #자율준수프로그램실무 #감면 #antitrust #compliance program #enforcement programs for corporate compliance #corporate compliance activities #mitigation

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참고문헌 (33)

참고문헌 신청
/ / Antitrust Enforcement and the Consumer google schola / / Compliance101-The Caremark Case google schola / / Consent Decree google schola / / Status Report: Corporate Leniency Program google schola / / The Accomplishments of the US Department of Justice 2001-2009 google schola

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