2. C Stock Company:

3. Daehan:

The costs of appeal are assessed against the plaintiffs.

Article 19(5) of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the “Act”) provides that where two or more enterprisers are committing any act falling under any of the subparagraphs of paragraph (1) practically restricting competition in a particular business area, such an agreement shall be presumed to have been reached even if there is no express agreement between them to do such act in the absence of such an agreement, and there is no provision that criminal punishment shall be imposed on the part of violating Article 19(5) of the Act, and therefore, the provision of Article 19(5) of the Act does not contravene the principle of no punishment or presumption of innocence.

In addition, in order to prove the establishment of an unfair collaborative act as provided in Article 19(1) of the Act, the Fair Trade Commission must prove that the act was done under the explicit and implied agreement of the enterpriser concerned. Considering the nature of the unfair collaborative act closely conducted, the presumption provision under Article 19(5) of the Act is established in order to ensure the effectiveness of regulation of the unfair collaborative act (see Supreme Court Decision 99Du6514, 6521, Mar. 15, 2002). The enterpriser who is presumed to have been agreed under Article 19(5) of the Act is opposed to the "existence of the agreement". In other words, the agreement is not based on the agreement, but on the premise that the act is not based on the agreement, or it is proved that the above act was not a collaborative act under the agreement, and thus, it can be said that the presumption has become extinct because the above provision violates the enterpriser's freedom to make a penalty surcharge (see Supreme Court Decision 2001Du1239, Feb. 28, 2003).

The ground of appeal on this part is without merit.

2. Regarding ground of appeal No. 2

The relevant market, which is defined as the premise of the determination of the unfair collaborative act prescribed by the Act, shall be determined by comprehensively considering the similarity of functions and utility of the goods subject to the transaction, recognition of the substitutability of buyers, and the form of management decision related thereto.

The court below rejected the plaintiff Gap corporation (hereinafter "Plaintiff Eul corporation")'s share of the installment financing market was 30.9%, about 43.1%, and about 10.8% of the plaintiff Eul corporation (hereinafter "Plaintiff D corporation")'s share of 10.8%, and the market share of the plaintiff Eul corporation (hereinafter "Plaintiff D corporation") was 84.8%, and there was only six companies, including the plaintiffs, engaged in installment financing market at the time of the violation of this case. The plaintiff's used cars market share of the plaintiff's used cars was 4.8%, but there was no difference between the loan limit of guarantee for each company of installment and financial services, but it was inevitable that competition was conducted mainly by the plaintiff's used cars under the premise that the plaintiff corporation's used cars was 9.1% of the average interest rate of 19.5% of the plaintiff corporation's used cars, including the credit card company's used cars which had no capacity to use.

Examining the relevant evidence in light of the records in accordance with the above legal principles, the above fact-finding and determination by the court below is just and acceptable, and there is no violation of the rules of evidence, omission of judgment, or incomplete hearing on competition restriction in the relevant market, as alleged in the grounds of appeal.

3. As to the third ground for appeal

In determining circumstances in which enterprisers who are presumed to have agreed on unfair collaborative acts pursuant to Article 19(5) of the Act can destroy presumption of unfair collaborative acts, a reasonable decision shall be made in accordance with the trade norms by comprehensively taking into account the characteristics and status of the market in the field of trade of the product in question, the characteristics and patterns of the product, the distribution structure, the structure of pricing, the overall and external impacts on the market price, the position of each individual company in the same field of trade, the impact of price changes on the business profits, market share, etc. of the individual company, the legitimacy of the business judgment in light of the individual business circumstances of the enterpriser, the actual state of direct exchange of opinions, such as meetings between the enterprises, etc., the degree of probability that the agreement may be reached even without consultation, the experience in price reduction and the history of violation of the law at the time of the transaction, and the background of economic and policy (see Supreme Court Decision 2001Du552, Dec. 12, 2003).

The court below rejected the plaintiffs' assertion as to the extinguishment of presumption of agreement of unfair collaborative act on the ground that the evidence as shown above is difficult to believe or otherwise there is no other evidence to acknowledge it, or that there is no other circumstance to reverse presumption of agreement of unfair collaborative act on the ground that the act of price reduction, which is the same externally revealed price reduction as that of the plaintiffs' assertion, was conducted independently according to their respective business judgment without any agreement or mutual needs.

Examining the relevant evidence in light of the records, we affirm the fact-finding and judgment of the court below as just, and there is no violation of the rules of evidence as to the destruction of the presumption of unfair collaborative act and any error of mistake of facts due to insufficient deliberation, as alleged in the grounds of appeal.

4. As to the fourth ground for appeal

Article 22 (1) and Article 61 (1) [Attachment 2] 6 of the Enforcement Decree of the Act provides that where an enterpriser has jointly conducted so-called unfair collaborative acts with other enterprisers, the Fair Trade Commission may impose upon the enterpriser a penalty surcharge calculated on the basis of the turnover during the period of such violation. In calculating the turnover which is the basis for the calculation of the penalty surcharge, the scope of the goods or services related to the unfair collaborative act which is the premise shall be determined individually and specifically by taking into account the kind and nature of the goods or services included in the agreement between the enterpriser who has jointly conducted the unfair collaborative act, the kind and nature of the transaction area, transaction counterpart, transaction stages, etc. (see Supreme Court Decision 201Du10387, Jan. 10, 200). Under the Act, the penalty surcharge means an act of violation of Article 2 of the Enforcement Decree of the Act, which is the basis for the calculation of the turnover of the unfair collaborative act, and it means that it does not include an average turnover of the goods or services generated during the period of such violation.

In accordance with the above legal principles, the court below is just to consider the interest accrued during the plaintiffs' violation period as the sales amount which serves as the basis for imposing the penalty, and there is no error in the misapprehension of legal principles as to the calculation of sales amount which serves as the basis for imposing the penalty surcharge, nor in the misapprehension of legal principles as to the deviation

5. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo

Justices Park Jae-sik

Justices Shin Hyun-chul