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Jipyong News|KOREA LEGAL INSIGHT

The KFTC File Follows You to Court: Korea Expands Access to Evidence in Antitrust Damages Litigation

2026.09.21

Introduction
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On August 20, 2026, the National Assembly passed an amendment to Korea’s Monopoly Regulation and Fair Trade Act (the “MRFTA”).  The amendment is intended to facilitate access to materials relevant to private antitrust lawsuits, including materials held by the Korea Fair Trade Commission (the “KFTC”).  Current Article 110 of the MRFTA provides an avenue for a court to request the record of a case but imposes no express compliance duty on the part of the KFTC.  Article 119, moreover, prohibits KFTC personnel from disclosing business secrets learned through their work, and it is unclear whether that prohibition extends to disclosures made to a court.  The newly amended Article 110 creates a qualified production duty under which KFTC-held materials may, subject to statutory exceptions and safeguards, be submitted to a court for use in a private damages action.</div>
 
 
1. From Discretionary Request to Production Duty

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The amended Article 110(1) requires the party seeking access to KFTC-held materials to make a showing that, despite reasonable efforts, which may include applying for a party-production order under Article 111, it cannot obtain material needed to prove violation, loss or quantum.  The court may then request that the KFTC submit such material. 
 
Under Article 110(2), and notwithstanding Article 344(2) of the Civil Procedure Act (which excludes documents held by public officials in the course of their duties from the general duty to produce), the KFTC must produce the requested material once it has taken a disposition under the MRFTA.  However, it may decline to submit material falling within one of the statutory categories in Article 110(2).  Article 119’s secrecy duty does not apply to production under Article 110. 
 
In practical terms, the amendment creates a targeted and court-controlled production mechanism rather than a general right of access to the KFTC’s file. </div>
 
 
2. What May (and May Not) Leave the KFTC 
 
A. Business and Third-Party Materials Are Potentially Exposed

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The statutory exceptions in Article 110(2) are framed by category of material rather than by the identity of the person that supplied it. Accordingly, materials submitted by businesses or third parties are, in principle, subject to production unless they belong to the four protected categories set out below.</div>
 
B. Four Categories Are Expressly Protected

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Article 110(2) permits the KFTC to withhold: (i) materials related to leniency/self-reporting under Article 44(4); (ii) materials the KFTC created to conduct its investigation or deliberation, except materials specified in the decision for that case; (iii) materials made non-public by another statute; and (iv) trade-secret materials.  Under Article 110(3), the court may order the KFTC to present withheld material to the court for review to determine whether an exception actually applies, but no other person may see it during that review.</div>
 
C. Trade Secrets Are Not Entitled to Absolute Protection

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Article 110(4) provides that, if the court finds trade-secret materials indispensable to proving the violation, proving resulting loss, or establishing quantum, the KFTC must submit them.  The court must designate the scope of material that may be inspected or the persons permitted to inspect it. 
 
Where the KFTC has submitted trade-secret materials under Article 110(2)(iv), the amended Article 112 allows either the party or the KFTC to seek a confidentiality order.  The order may restrict use or disclosure of the trade secret outside the conduct of the litigation.  Breach of a confidentiality order is a criminal offence under Article 127(1), punishable by up to two years’ imprisonment or a fine of up to KRW 20 million. </div>
 
 
3. Broader Party-Production Increases Litigation Exposure

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The amended Article 111(1), which governs party-production, applies generally to damages actions for MRFTA violations rather than to specified categories of conduct.  It also covers materials needed to prove violation as well as loss and quantum.  Materials relating to leniency or self-reporting under Article 44(4) remain excluded from party-productions. 
 
Article 111(2) continues to permit the court to require presentation of materials in order to assess the grounds for withholding them.  If a party refuses production without justification, Article 111(4) permits the court to accept as true the applicant’s assertion regarding the contents of the material.  Article 111(5) goes further: where the applicant has substantial difficulty specifying the contents and cannot reasonably be expected to prove relevant facts through other evidence, the court may accept the applicant’s factual allegation as if proven. 
 
Plaintiffs may, in practice, seek materials from an opposing party and, where they can show that reasonable efforts have not enabled them to obtain necessary materials, ask the court to request materials from the KFTC.  A KFTC decision may also inform a party’s assessment of what evidence may be relevant in follow-on litigation, although the amendment does not itself create an entitlement to obtain all materials referenced in or related to the decision. </div>
 
 
4. Practical Steps for Evidence Management 
 
A. Treat the Regulatory File as a Potential Litigation File

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Submissions to the KFTC should be made with the understanding that they may be used in later judicial proceedings.  Companies should consider, from the investigation stage, how the scope and content of the materials submitted to the KFTC could affect follow-on civil litigation. 
 
The same applies to internal decision documents, e-mails and meeting minutes.  Because Article 111 now covers materials needed to prove violation itself, routine internal communications are within the reach of party-production orders. </div>
 
B. Identify Trade Secrets Precisely

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Mark the specific portions claimed as trade secret and document why they remain commercially sensitive.  Because the amendment permits production where the court finds trade secret materials indispensable, companies should consider identifying and managing claimed trade secrets with particular care from the time of submission. 
 
The amendment does not expressly require the KFTC to notify or consult the submitting company before producing its materials.  Accordingly, in some cases, the company’s confidentiality designations at the time of submission may be the only indication available to the KFTC that the materials should be treated as trade secrets. </div>
 
 
5. Timing

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The bill passed the National Assembly on August 20, 2026 and was promulgated on September 8, 2026.  It is scheduled to take effect on September 9, 2026 and apply to damages actions filed thereafter.  Its applicability is tied to when the damages action is filed rather than when the KFTC investigation began.  Therefore, the amendment does not exclude materials generated in an investigation predating the effective date.</div>
 
 
Conclusion

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The amendment does not open the entire KFTC file.  But it does make KFTC-held materials more accessible as evidence in private damages litigation, subject to the statutory conditions and exceptions, and expands production directly from defendants.  It is also part of a movement toward wider discovery in Korean litigation.  Companies should treat every KFTC investigation as the first stage of a potential civil damages case.</div>

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