[2] The case holding that the ordinary interest rate cannot be applied immediately without examining whether the securities company traded the above bill with an independent third party, solely on the ground that there was no case where the securities company actually traded the above bill with an unrelated party in calculating the normal discount rate, and whether there was any special circumstance where the individual discount rate of the above bill was deemed not to lower the ordinary discount rate

[3] The meaning of the normal interest rate that serves as the basis for determining whether payment and consideration are substantially favorable in a specific fund or asset transaction

[4] The method of calculating the normal discount rate in a case where an independent party, at the same time or near the same method as the purchase of corporate bills issued by the subsidizing entity, has purchased corporate bills issued by the subsidizing entity at the same time

[5] Criteria for determining whether a transaction constitutes a transaction under substantially favorable terms under Article 23(1)7 of the former Monopoly Regulation and Fair Trade Act

[6] The case holding that the actual discount rate shall be based on the actual discount rate of the corporate bills, which is the actual discount rate of the funds provided to the applicant, and that the purchase discount rate of the support entity shall not be based on the purchase discount rate of the support entity, including the issue amount and the fees paid to the broker

1. The judgment on the grounds of appeal by the Plaintiff KS Co., Ltd., Switzerland Telecom Co., Ltd., KSC Co., Ltd., Switzerland gas Co., Ltd., KST corporation, and KS Construction Co., Ltd. (hereinafter in convenience, the indication of the corporation is omitted)

A. The part of the purchase of corporate papers listed in the separate sheet No. 2 of the judgment of the court below (hereinafter “the list of the case”) No. 2 of the plaintiff KS, 1 through No. 13, 19 through 22, 25 through 30, 33, and 34 listed in the separate sheet No. 2 of the judgment of the court below, and the part of the purchase of each corporate papers listed in the separate sheet No. 1, 3, and 8 of the plaintiff KSex of the case’s list No. 2 of the plaintiff KS case’s "the purchase details of the plaintiff KS case’s 6.”

The term "individual normal interest rate" means the interest rate applicable to a loan transaction between the applicant entity and an independent financial institution which has no special relationship with the applicant in terms of the same or similar circumstances in terms of the financing transaction, time, type, size, period, credit standing, etc., and the rate applicable to a loan transaction between the applicant entity and the applicant entity if the fund transaction has been conducted between the applicant entity and an independent financial institution which has no special relationship with the applicant in terms of the same or similar circumstances in terms of the financing transaction, time, type, size, period, credit standing, etc., and the average overdraft loan interest rate (the average average overdraft loan rate (the average average total of the overdraft loan rates in commercial banks as of the end of the month in question) of commercial banks announced by the Bank of Korea as of the end of the month in question is a temporary short-term loan interest rate based on the overdraft loan contract, and thus, the average overdraft loan interest rate is generally higher than the general loan interest rate such as commercial papers, etc. Thus, the individual normal interest rate cannot be calculated just on the ground that it is difficult to apply.

The lower court determined that the Defendant’s measure was justifiable at the normal discount rate of the instant commercial papers, on the ground that there was no other method to calculate the individual normal discount rate, on the ground that the instant commercial papers were traded with a related party who could have been subject to the individual normal discount rate at the time of the said transaction, and that there was no other method to calculate the individual normal discount rate.

However, such determination by the court below is difficult to accept for the following reasons.

Examining the facts in light of the aforementioned legal principles, where SDRs were traded between unrelated parties in the same or similar circumstances in terms of the time, type, size, period, credit standing, etc. of the instant commercial papers transaction and its own commercial papers transaction with the unrelated parties, not only the discount rate to be applied, but also the discount rate to be applied if the commercial papers transaction had been conducted between unrelated parties, under the above circumstances, and thus, it can be deemed that the said rate was an individual discount rate. Thus, the general discount rate cannot be applied immediately on the ground that SDRs do not have any cases of actual transaction between unrelated parties with the unrelated parties.

Therefore, the court below should have deliberated on whether there was a transaction of commercial papers between unrelated parties in the same or similar circumstances in terms of the time, type, size, period, credit standing, etc. of the commercial papers of this case, and whether the discount rate applied to the transaction of this case can be seen as an individual normal discount rate of the commercial papers of this case, and whether there are special circumstances where the individual ordinary discount rate of the commercial papers of this case is deemed not to lower the ordinary discount rate, and determined whether the general ordinary discount rate can be seen as the normal discount rate of the commercial papers of this case. However, the court below determined that the above measures of the defendant were justifiable only for the reasons stated in its reasoning. In so doing, the court below erred by misapprehending the legal principles on the calculation of the individual ordinary discount rate and the case where the general discount rate can be seen as the normal discount rate, which led to failure

B. The part of the purchase of each commercial paper listed in the list Nos. 4 and 6 of Plaintiff SK’s list “1. Purchase Details of Plaintiff SK”, the part of the purchase of each commercial paper listed in the list Nos. 7 through 11, 13 through 16, and 19 of Plaintiff SK’s list “3. Purchase Details of Plaintiff SK’s purchase”, and the part of the purchase of each commercial paper listed in the above list Nos. 1 through 6, 8, and 9 of Plaintiff SK’s “4. Purchase Contents of Plaintiff SK’s purchase”, and the part of the purchase of each commercial paper listed in the above list Nos. 11 through 14 of Plaintiff SK’s list “6. Purchase Contents of Plaintiff SKK’s purchase”, and the part of the purchase of each commercial paper listed in the above list No. 5,6, 16 through 18, and 26 of Plaintiff SK’s above list “9. Purchase Contents”.

(1) Determination of the normal discount rate

The normal interest rate, which serves as the basis for determining whether benefits and consideration are significantly advantageous to a particular loan or asset transaction, refers to the interest rate applicable to a loan transaction between the applicant and an independent financial institution that has no special relationship with the applicant in terms of the same or similar circumstances in terms of the loan transaction, time, type, size, period, credit standing, etc. (see Supreme Court Decision 2001Du2935 delivered on October 14, 2004). The normal interest rate for such a commercial paper is reasonable to deem that the loan transaction has been conducted between the applicant and an independent financial institution that has no special relationship with the applicant in terms of the same or similar circumstances in terms of the loan transaction time, type, size, period, credit standing, etc. (see Supreme Court Decision 2001Du2935 delivered on October 14, 2004).

In the same purport, the court below is just in holding that the normal discount rate is applied to the purchase of the commercial papers issued by the plaintiff KS case, KS, KS, KS, and KS construction (hereinafter "five companies such as plaintiff KS case") at the same time or most adjacent to the same time by non-affiliated companies that do not have special relation with KS case at the same time, and there is no error in the misapprehension of legal principles as to the calculation of the normal discount rate, as otherwise alleged in the ground of appeal.

(2) Whether it is obvious

In determining whether a transaction constitutes a trade under substantially favorable conditions under Article 23 (1) 7 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 6043 of Dec. 28, 1999; hereinafter “the Act”), the determination shall be made specifically and individually, taking into account not only the difference between the payment and the consideration, but also the economic benefits arising from the scale of the support and the amount of the support, the period of support, the number of support, the timing of the support, the economic situation at the time of the support, etc. In addition, when acquiring commercial papers through the intermediary, the actual discount rate that should be compared with the normal discount rate shall be based on the discount rate for the commercial papers, which is the actual discount rate for the funds provided to the support company, and it shall not be based on the purchase discount rate of the support company, including the fees, etc. (see Supreme Court Decision 2001Du6197, Apr. 9, 2004).

According to the records, 1. 2. 6 CPs 4 and 6 CPs 1 and 6 CPs 1, 2. 7 CPs 1 and 3. 8 CPs 5 and 6 CPs 1, 2. 7, 11, 13 and 19 CPs 1 and 4. 5 % below the normal discount rate for CPs 1 and 6 CPs 8 and 6 CPs 5 ; 3. 6 CPs 1 and 6 CPs 5 ; 5% below the above CPs 8 and 10 CPs 5 ; 4% below the above CPs 1 and 6 CPs 5 ; 3. 5% below the above CPs 1 and 5% below the above CPs 1 and 5% below the CPs 6 CPs 7 and 5% below the above CPs 1 and 4% below the above CPs 2.

Therefore, the judgment of the court below as to this part of the above purchase of each of the above corporate bills is just, and there is no error in the misapprehension of legal principles as to whether the purchase of each of the above corporate bills constitutes a trade under significantly favorable terms, as otherwise alleged in the ground of appeal, and as to the purchase of each of the above corporate bills as stated in Nos. 7, 9, 11, 13 through 16, and 19 of the plaintiff SK, the purchase of each of the corporate bills as stated in Nos. 1, 3, 6, 8, and 9 of the plaintiff SK's above, and the purchase of each of the corporate bills as stated in Nos. 5, 6, 17, 18, and 26 of the plaintiff SK's above, and the part as to the purchase of each of the above corporate bills as to whether the above corporate bills constitutes a trade under substantially favorable terms and conditions. However, there is no error in the misapprehension of legal principles as to whether the purchase of each of the above corporate bills constitutes one of the plaintiff Sk No. 16.

(3) Whether the illegality is improper

In order to establish an unfair support act under Article 23 (1) 7 of the Act, the support act of the support body must be conducted unfairly. In determining the illegality of the support body by the support body, it shall be determined according to whether the support body is likely to impede fair trade by comprehensively taking into account the relationship between the support body and the support body, the purpose and intent of the support act, the structure and characteristics of the market to which the support body belongs, the structure and characteristics of the support body, the economic benefits and the period of support due to the transaction volume and the act of support, the restrictions on competition and the effect of concentration of economic power in the market to which the support body belongs, and other factors such as restricting competition in the market to which the support body belongs. (See Supreme Court Decision 2004Du2233 delivered on May 13, 2005).

According to the records, five companies, including Plaintiff SK, are affiliated companies of SK (SK), Plaintiff SK maintained the market share of 40 billion won in total over two occasions on September 28, 1998, and Plaintiff SK’s 60 billion won in total over eight times during the period from July 6, 1998 to December 23, 198, and the total amount of 9 billion won in total during the 9.3 billion won in total during the 19.7 billion won in total, Plaintiff SK’s 9.3 billion won in total over 9 billion in total, and Plaintiff SK’s 9.3 billion won in total during the 19.5 billion won in total, among the 9.9 billion won in total, during the period from August 12, 1998 to December 8, 1998.

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the illegality of the act of assistance as otherwise alleged in the ground of appeal.

2. Judgment on the Defendant’s grounds of appeal

A. As to a significant nature

Whether it is a transaction under substantially favorable conditions under Article 23 (1) 7 of the Act shall be determined on a specific and individual basis by comprehensively taking into account not only the difference between the payment and the opposite parts, but also economic benefits arising from the scale of the support and the act of the support, the period and frequency of the support, the timing of the support, the economic situation at the time of the support, etc.

기록에 의하면, ① 원고 에스케이는 1998. 3. 2.부터 같은 해 12. 3.까지 사이에 총 3회에 걸쳐 이 사건 목록 “1. 원고 에스케이의 매입내역” 순번 1, 3, 5번 기재의 각 에스케이증권 발행 기업어음을 발행할인율 10.60% 내지 22.50%로, ② 원고 에스케이텔레콤은 1998. 3. 13.부터 같은 해 6. 29.까지 사이에 총 11회에 걸쳐 위 목록 “2. 원고 에스케이텔레콤의 매입내역” 순번 14 내지 18, 23, 24, 31, 32, 35, 36번 기재의 각 에스케이증권 발행 기업어음을 발행할인율 16.50% 내지 22.50%로, ③ 원고 에스케이씨는 1998. 2. 19.부터 같은 해 12. 28.까지 사이에 총 10회에 걸쳐 위 목록 “3. 원고 에스케이씨의 매입내역” 순번 1 내지 6, 12, 17, 18, 20번 기재의 각 에스케이증권 발행 기업어음을 발행할인율 8.22% 내지 24.70%로, ④ 원고 에스케이가스는 1998. 2. 19.부터 같은 해 10. 23.까지 사이에 총 5회에 걸쳐 위 목록 “4. 원고 에스케이가스의 매입내역” 순번 7, 10 내지 13번 기재의 각 에스케이증권 발행 기업어음을 발행할인율 8.70% 내지 25.70%로, ⑤ 에스케이옥시케미칼 주식회사(위 회사는 에스케이에버텍 주식회사로 상호가 변경되었다가, 에스케이씨 주식회사에 합병되었다. 이하 ‘에스케이옥시케미칼’이라 한다)는 1998. 2. 25.부터 1998. 5. 30.까지 사이에 총 3회에 걸쳐 위 목록 “5. 에스케이옥시케미칼의 매입내역” 순번 1 내지 3번 기재의 각 에스케이증권 발행 기업어음을 발행할인율 18.80% 내지 24.80%로, ⑥ 원고 에스케이텔레텍은 1998. 2. 20. 위 목록 “6. 원고 에스케이텔레텍의 매입내역” 순번 2번 기재의 에스케이증권 발행 기업어음을 발행할인율 20.30%로, 같은 해 5. 8.과 6. 29. 위 순번 9, 10번 기재의 각 에스케이증권 발행 기업어음을 발행할인율 16.50% 내지 19.70%로, ⑦ 원고 에스케이케미칼 주식회사는 1998. 5. 25. 위 목록 “7. 원고 에스케이케미칼의 매입내역” 기재의 에스케이증권 발행 기업어음을 발행할인율 19.25%로, ⑧ 에스케이유통 주식회사(위 회사는 에스케이글로벌 주식회사에, 에스케이글로벌 주식회사는 다시 에스케이네트웍스 주식회사에 순차로 합병되었다. 이하 ‘에스케이유통’이라 한다)는 1998. 3. 25.과 같은 해 5. 27. 2회에 걸쳐 위 목록 “8. 에스케이유통의 매입내역” 순번 1, 2번 기재의 각 에스케이증권 발행 기업어음을 발행할인율 18.30% 내지 23.00%로, ⑨ 원고 에스케이건설은 1998. 6. 30.부터 같은 해 12. 4.까지 사이에 총 24회에 걸쳐 위 목록 “9. 원고 에스케이건설의 매입내역” 순번 1 내지 4, 7 내지 15, 19 내지 25, 27 내지 30번 기재의 각 에스케이증권 발행 기업어음을 발행할인율 10.70% 내지 16.70%로 각 매입한 사실, 한편 피고는 에스케이증권 발행의 기업어음의 정상할인율을 1998. 1.부터 같은 해 6.까지는 일반정상금리를 기준으로, 같은 해 7. 이후에는 특수관계 없는 비계열회사가 동일한 시점 또는 가장 근접한 시점에 에스케이증권 발행의 기업어음을 매입함에 있어서 적용된 할인율을 기준으로 각 산정하였는바, 그와 같이 피고가 산정한 각 정상할인율과 위 각 발행할인율의 차이는 ① 원고 에스케이의 경우 1.40% 내지 2.43%, ② 원고 에스케이텔레콤의 경우 1.44% 내지 2.43%, ③ 원고 에스케이씨의 경우 0.90% 내지 1.85%, ④ 원고 에스케이가스의 경우 0.72% 내지 1.93%, ⑤ 에스케이옥시케미칼의 경우 1.14% 내지 2.14%, ⑥ 원고 에스케이텔레텍의 경우 위 목록 “6. 원고 에스케이텔레텍의 매입내역” 순번 2번 기재의 기업어음을 제외한 나머지 기업어음 매입에 있어서는 1.24% 내지 1.96%인 반면, 위 순번 2번 기재의 기업어음 매입에 있어서는 6.12%, ⑦ 원고 에스케이케미칼의 경우 1.69%, ⑧ 에스케이유통의 경우 1.93% 내지 2.64%, ⑨ 원고 에스케이건설의 경우 -1.70% 내지 1.80%인 사실을 알 수 있다.

Examining the legal principles as seen earlier in light of the records, the Defendant’s act of purchasing corporate bills from January 1, 1998 to June 1, 1998 was erroneous as the normal discount rate of the corporate bills of this case. However, even if it is based on the normal discount rate applied by the Defendant, such as deeming the general ordinary discount rate as the normal discount rate of the corporate bills of this case for the part concerning the purchase of corporate bills of this case during the above period, considering the difference between the normal discount rate and the ordinary discount rate of the corporate bills of this case, the size of the transaction of this case, the period, number of the transaction, the number of the transaction, the time of the transaction, and the economic interest of the applicant E&T, which were supported by the transaction, among the purchase of corporate bills of this case, can not be deemed to constitute a transaction under significantly favorable terms except for the purchase of corporate bills listed in the above list No. 2 of Plaintiff E&T, and there is room to deem that the purchase of corporate bills of this case constitutes a significantly favorable condition.

Therefore, the judgment of the court below as to this part of each of the above CPs purchase acts, excluding the purchase acts of CPs No. 2, among the above CPs purchase acts, has some inappropriate parts in the court below's reasoning. However, the conclusion that the purchase acts of CPs in this part cannot be deemed to constitute a transaction under significantly favorable terms is just and acceptable. In so doing, there were no errors in the misapprehension of legal principles as to whether the judgment or superior to the judgment, the number of unfair support acts, and the transaction under substantially favorable terms, as otherwise alleged in the ground of appeal, by misapprehending the legal principles as to the transaction under significantly favorable terms and conditions. However, the part where the purchase acts of CPs No. 2, as stated in the above CP 2, cannot be deemed to constitute a transaction under substantially favorable terms and conditions, it is erroneous in the misapprehension of legal principles as to the transaction under remarkably favorable terms and conditions, thereby failing to exhaust all necessary deliberations.

B. On the penalty surcharge payment order

In imposing penalty surcharges on the act of improper assistance, if there is no evidence to calculate the amount of penalty surcharges on the basis of some of the offenses committed by the Defendant, even though one penalty surcharge was imposed on several offenses, the entire order to pay penalty surcharges is to be revoked (see Supreme Court Decision 2001Du2881, Oct. 14, 2004).

According to the records, the Defendant’s order to pay one penalty surcharge for the purchase of each of the instant corporate bills of this case by Plaintiff KS, Switzerland, KSC, Switzerland gas, KST, and KS Construction respectively. Since there are no data to calculate the penalty surcharge based on the purchase of some of the corporate bills corresponding to the unfair support act among the purchase of each of the said corporate bills, the Defendant’s order to pay the penalty surcharge is to be revoked in its entirety.

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the scope of revocation of a penalty surcharge order as otherwise alleged in the ground of appeal.

3. Conclusion

그러므로 원심판결 중, 원고 에스케이의 이 사건 목록 “1. 원고 에스케이의 매입내역” 순번 2번 기재의 기업어음 매입행위, 원고 에스케이텔레콤의 위 목록 “2. 원고 에스케이텔레콤의 매입내역” 순번 1 내지 13, 19 내지 22, 25 내지 30, 33, 34번 기재의 각 기업어음 매입행위, 원고 에스케이씨의 위 목록 “3. 원고 에스케이씨의 매입내역” 순번 8, 10번 기재의 각 기업어음 매입행위, 원고 에스케이가스의 위 목록 “4. 원고 에스케이가스의 매입내역” 순번 2, 4, 5번 기재의 각 기업어음 매입행위, 원고 에스케이텔레텍의 위 목록 “6. 원고 에스케이텔레텍의 매입내역” 순번 1 내지 8번 기재의 각 기업어음 매입행위, 원고 에스케이건설의 위 목록 “9. 원고 에스케이건설의 매입내역” 순번 16번 기재의 기업어음 매입행위에 대한 각 시정명령, 공표명령 부분을 각 파기하고, 사건을 다시 심리·판단하게 하기 위하여 이 부분 사건을 원심법원에 환송하며, 원고 에스케이, 에스케이씨, 에스케이가스, 에스케이텔레텍, 에스케이건설 및 피고의 나머지 상고를 모두 기각하고, 피고의 원고 에스케이에버텍 주식회사의 소송수계인 에스케이씨 주식회사, 원고 에스케이케미칼, 원고 에스케이유통 주식회사의 소송수계인 에스케이글로벌 주식회사의 소송수계인 에스케이네트웍스 주식회사에 대한 상고비용은 패소자가 부담하기로 하여 관여 대법관의 일치된 의견으로 주문과 같이 판결한다.

Justices Ahn Dai-hee (Presiding Justice)