[2] In the case of a principle of allocation of burden of proof in an administrative litigation and an appeal litigation, the burden of proof as to the legality of disposition

[3] The case holding that in a case where three companies, including Gap corporation, etc., which are the manufacturers and sellers of the steel plates agreed to determine the base price of the cold-conditioning machine at the same or a similar level, the Fair Trade Commission ordered Gap company to pay penalty surcharges, the case holding that it was lawful to impose penalty surcharges including the sales arising from the transportation cost and the discretionary processing transaction, and

The scope of related goods or services, which are the premise for calculating the amount of sales, should be determined individually and specifically in consideration of the contents of the agreement between the enterprisers who conducted the unfair collaborative act, the kind and nature of the goods or services which are directly or indirectly affected by the unfair collaborative act, the purpose of use and substitution, the transaction area, transaction counterpart, transaction stage, etc.

[2] In principle, the burden of proof in an administrative litigation that applies mutatis mutandis under the provisions of the Civil Procedure Act is allocated among the parties in accordance with the general principles of civil procedure, and in the case of an appeal litigation, the defendant who asserts the legality of the disposition is obliged to bear the burden of proof as to the legitimacy of the disposition. In a case where there is a reasonable and acceptable proof of the legitimacy of a certain disposition asserted by the defendant, the disposition is justifiable

[3] In a case where the Fair Trade Commission ordered Gap corporation to pay a penalty surcharge on the ground that Gap corporation, which is a business operator manufacturing and selling steel plates, agreed to determine the base price of the air conditioners Eul corporation and Byung corporation at the same or a similar level, the case holding that the scope of "the sales" of the air conditioners, which constitutes the relevant sales, should be determined individually and specifically by referring to the business operator's accounting data, and in light of the fact that Gap corporation issued a tax invoice on the sales proceeds of the air conditioners, included transportation expenses in the sales proceeds, and accounts for the transportation expenses as the air conditioners' sales proceeds, the transportation expenses of the air conditioners are included in the relevant sales proceeds, while Eul company and Byung entrusted the operation of the air conditioners to Eul company and sold the air conditioners Eul company Eul company's products after processing them in accordance with the entrustment contract, and the sales proceeds of the air conditioners, which were sold to the consignee company Eul, were also included in the direct and indirect sales related to the air conditioners' products.

1. Plaintiff’s ground of appeal

Whether a collaborative act restricts competition should be determined individually by examining whether the collaborative act causes or is likely to cause impacts on the determination of price, quantity, quality, other terms and conditions of trading, etc. by reducing competition in a particular business area, taking into account various circumstances, such as the characteristics of the relevant goods or services, consumer selection criteria, and the impact of the market and business operators on competition (see Supreme Court Decision 2013Du126, May 27, 2016, etc.).

The lower court, based on the circumstances indicated in its reasoning, acknowledged that: (a) the Plaintiff, Eastern Steel Co., Ltd., Liquefied ethyl Co., Ltd. (hereinafter “Plaintiffs et al.”) made an express agreement (hereinafter “instant agreement”) stating that the base price of the coolant (including both PO, MH and general coolant (CR) is the same or similar level; and (b) even if the agreed base price was determined on an individual discount policy without complying with three companies including the Plaintiff, etc., the price of the coolant is determined based on the base price; and (c) the market owner’s transaction body has no choice but to affect the market price of the coolant; and (d) the agreed market share of the Plaintiff et al., the Plaintiff et al.’s market share was continuously increased for the purpose of reducing the market share of the Plaintiff et al. (hereinafter “the Plaintiff et al.”) and the Plaintiff et al.’s market share was the most difficult market share.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court is justifiable, and it did not err by misapprehending the legal doctrine regarding competition limitation, etc. of the standard price agreement, or by failing to exhaust all necessary deliberations.

2. As to the Defendant’s ground of appeal

A. Relevant statutes and legal principles

According to Article 22 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”), Articles 9(1) and 61(1) [Attachment 2] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 27034, Mar. 8, 2016), the Fair Trade Commission may impose upon a business entity that has engaged in unfair collaborative acts a penalty surcharge calculated based on the sales of relevant goods or services sold in a particular business area during the period of violation. Here, “sales” is determined by referring to materials, etc. of the business entity’s accounting, but the scope of each act is determined individually and specifically.

The scope of related goods or services, which are the premise for calculating the amount of sales, should be determined individually and specifically by taking into account the contents of an agreement between the enterprisers who conducted the unfair collaborative act, the type and nature of the goods or services that are directly or indirectly affected by the unfair collaborative act, the purpose of use, substitution possibility, transaction area, transaction counterpart, transaction stage, etc. (see, e.g., Supreme Court Decision 2013Du1126, Sept. 8, 2011). Meanwhile, in an administrative litigation that applies mutatis mutandis under the Civil Procedure Act, the burden of proof is, in principle, distributed among the parties in accordance with the general principles of civil procedure, and in an administrative litigation, the defendant who asserts the legality of the disposition has the burden of proof as to the legitimate reason. If there is proof of reasonable acceptable response as to the legality of a certain disposition asserted by the defendant, the disposition is justifiable, and contrary allegations and proof are returned to the Plaintiff, the counter-party, as the Plaintiff (see, e.

B. Whether the sales related to the transportation cost are included

(1) The lower court determined that the transport cost should be deducted from the relevant sales amount of the instant case, on the grounds that: (a) the Plaintiff, a seller, was not necessarily accompanied by the sale of the air conditioners, which are related goods under the instant agreement, inasmuch as the transport cost cannot be deemed to be inevitably accompanied by the sale of the air conditioners, which are the goods related to the instant agreement, (b) the Plaintiff provided the transport service upon the request of a consumer, after receiving actual expenses set on the basis of the distance through individual negotiations with the transport company; (c) the transport service can be deemed to be “the cost of the transport service”; and (c) the transport service is a separate service that is separate from the sale of the air conditioners, which is the goods related to the instant agreement, although it is premised on the sale of the air condition that the sale of the air conditioners, which is the goods related to the instant agreement, even if the Plaintiff and other steel companies provided the whole or part of the transport cost to the buyer.

(2) However, it is difficult to accept the above determination by the lower court for the following reasons. Since it is clear that the relevant products of the instant agreement are “herigerrative steel plate,” the scope of “sales” in the cooling machine, which constitutes the relevant sales in this case, shall be determined individually and specifically by referring to the business operator’s accounting data, etc.

However, according to the reasoning of the judgment below, the Plaintiff issued a tax invoice on the sales proceeds of the coolant, and included transportation expenses in the sales proceeds, and accounts for transportation expenses as the sales proceeds of the coolant.

In addition, ① In general, the sale of goods requires transportation in the process of delivering the goods to consumers, so such transportation cost should be deemed to be entirely separate from the sale of the goods in light of the specific composition of the sale price of the goods, awareness of the parties to the transaction, or transaction practices. ② However, in the air condition sales market of this case, there are no data to regard the buyer’s own transportation of air conditioners as a transaction practice, and there are many cases in which the seller directly transports or separately transports the goods. Rather, the Plaintiff et al. appears to have used the transportation cost support as a means of reducing the actual sales price, ③ the buyer himself/herself transporting air conditioners or the seller uses separate transportation companies, and thus, it is reasonable to view that the transportation cost of the goods cannot be deemed to have been excluded from the relevant sales, and, in light of the legal principles as to the sale price of the goods, the part related to air conditioners, including the sale price of the goods, should not be deemed to have been included in the sale of the goods, and thus, it is reasonable to view the Plaintiff’s total or partial payment of the transportation cost.

(3) Nevertheless, the lower court determined otherwise that the instant penalty surcharge payment order was unlawful on the ground that the portion of the transport cost should be excluded from the relevant sales amount. In so determining, the lower court erred by misapprehending the legal doctrine on calculating the relevant sales amount under the Fair Trade Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of

C. Whether the relevant sales amount arising from a discretionary processing transaction include the relevant sales amount

(1) The lower court determined that the sales proceeds of the instant case ought to be deducted from the relevant sales proceeds, on the grounds that (i) the Plaintiff sold the heat smoke plate to the Plaintiff while entrusting the processing of the heat smoke plate to the Plaintiff; (ii) the price for the sales proceeds of the instant case, which the Plaintiff re-saleed and received to the trustor (hereinafter “sales proceeds of the sales proceeds of the instant sales proceeds”), regardless of the price of the small steel plate sold to the consumers, was determined by consultation with the truster, the truster, and the Plaintiff, the trustee, regardless of the price of the small steel plate sold to the consumers; and (iii) the Plaintiff and the dong scrap metal, etc., were in the position of the other party to the instant trade, and thus, cannot be deemed as having been applied to the sales proceeds of the instant case, which were jointly determined to sell to the consumers as a competing supplier’s position.

(2) However, it is difficult to accept the above determination by the court below for the following reasons.

(A) Review of the reasoning of the lower judgment and the record reveals the following circumstances.

① Since the instant consignment processing transaction takes the form in which the Plaintiff purchased and processed the heat from the said international steel, etc., and then again sells a finished product to the truster, it is difficult to view that the substance of the instant transaction is in essence different from the trade in the general fine steel board.

② Generally, the sales proceeds from processing as in the instant case seems to have been determined by adding the cost of manufacturing and the cost of processing the forest products to the cost of processing the forest products. However, as long as the Plaintiff purchases the heat-proof steel plates from the entrusting enterprise and resells the frying of the fright in the commissioning enterprise, the final resale price should be determined. Unless there are special circumstances, such as the Plaintiff’s nominal price in the heat-proof steel plates purchased by the entrusting enterprise, it is difficult to see that the Plaintiff’s final resale price is determined without any restriction in determining the resale price, and rather, it is reasonable to see that the Plaintiff’s final resale price is determined by taking into account the selling price in the fying steel plates ordinarily, and that the resale price would be determined within the limit of the selling price at least within the market price at least.

③ In addition, even if the consignment processing transaction of this case is between the participants in the collaborative act, insofar as the transaction for the same product takes the form of sale, it is reasonable to deem that the Plaintiff was affected by the agreement in this case, unless there are other circumstances to deem that the sale proceeds of the instant consignment processing was independently determined without being affected by the base price or the sale price during the market, as long as it takes the form of sale for the same product.

④ However, there was no data from the lower court to verify whether the individual amount of sales proceeds from processing determined in the specific negotiation process of the Plaintiff and the Eastern Steel, etc., and whether the large amount of sales proceeds from processing was determined through any negotiation process, and no data was submitted at all to verify that the difference between the sales proceeds from processing and the general sales prices of the small-scale steel board is reasonable.

(5) In addition, due to the characteristics of the raw materials of steel products, it is difficult to view that there is a difference between the transaction of goods and the sale of goods to general consumers among the same steel products manufacturers. Therefore, it is difficult to readily conclude that the price determined regardless of the price sold in the general market on the basis of the type of consignment processing or consignment transaction.

(B) Examining these circumstances in light of the legal principles as seen earlier, it is reasonable to view that it constitutes a direct instrument of the instant agreement, and that there is evidence of the Defendant’s response to the fact that the sales proceeds of the instant contract were directly and indirectly affected by the instant agreement. The evidence submitted to the lower court alone alone is difficult to deem that special circumstances exist to deem that the sales proceeds of the instant contract were independently and indirectly determined irrespective of the instant agreement. Thus, the Defendant’s proof of the legality of the calculation of the relevant sales proceeds is insufficient.

Nevertheless, the lower court determined otherwise based on the evidence stated in its reasoning that the sales proceeds of the instant case should be excluded from the relevant sales proceeds, and thus, the instant penalty surcharge payment order is unlawful. In so determining, the lower court erred by misapprehending the legal doctrine on the calculation of relevant sales proceeds and the distribution of the burden of proof, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal pointing this out

3. Conclusion

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Shin (Presiding Justice)