[2] In a case where eight companies, including Gap et al., who manufacture and sell tobacco spool pumps, etc., were ordered to pay penalty surcharges on the grounds that a series of agreements on the price increase, maintenance, and transaction restriction of products over ten times constituted unfair collaborative acts as stipulated in Article 19 (1) 1 of the former Monopoly Regulation and Fair Trade Act, the case affirming the judgment below which held that the above unfair collaborative acts constitute "an unfair collaborative act" as an act of jointly determining prices by eight companies, such as Gap et al., who occupy a market share exceeding 95%, which has a large degree of impeding competition among the enterprisers and substantial impact on the product market, and related enterprisers' damage is high, thereby constituting "an unfair collaborative act"

[3] In a case where eight companies, including Gap corporation, etc., manufacturing and selling tobacco pool pumps, etc., were ordered to pay penalty surcharges on the ground that a series of agreements pertaining to the price increase, maintenance, and transaction restriction of products over ten times constituted unfair collaborative acts under Article 19(1)1 of the former Monopoly Regulation and Fair Trade Act, etc., the case affirming the judgment below holding that Gap company does not constitute "the first or second person, who alone provided evidence necessary to prove that it is an unfair collaborative act" under Article 35(1) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act, the penalty surcharge reduction under Article 35(1) of the former Monopoly Regulation and Fair Trade Act

1. As to the misapprehension of legal principles as to "related sales"

According to Articles 22 and 55-3(3) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004; hereinafter the same shall apply), 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. 18768 of Mar. 31, 2005; hereinafter the same shall apply), where an enterpriser jointly engages in an unfair collaborative act with another enterpriser, the Fair Trade Commission may impose upon the enterpriser a penalty surcharge calculated on the basis of the sales amount during the period of the violation. The scope of goods or services related to the unfair collaborative act, which is the premise of calculating sales amount, should be determined on the basis of the calculation of the penalty surcharge, by taking into account the kind and nature of goods or services included in the agreement between the enterpriser and its counterpart, area, and stage of the transaction, etc. (see, e.g., Supreme Court Decision 200Du38180, Feb. 19, 20001

According to the reasoning of the judgment below, the court below, based on its adopted evidence, acknowledged the following facts: (a) the prices of tobacco spolythothoe (hereinafter referred to as "FPF") are first determined by the prices of the block (distance 15 km/metres) of generalized e.g., basic products; and (b) the prices of the remaining FPF products are determined depending on whether the prices of the products were added to the characteristics of smoke, color, high altitude, etc. based on the prices of the above products; and (c) in particular, in Busan region where the sales cost of automobile LF (hereinafter referred to as "LF"), is high, the prices of the products for automobiles are included in the sales price of the products related to the instant unfair collaborative act; and (d) based on its recognized facts, the sales price of the LF products for automobiles are also included in the sales price of the products related to the instant unfair collaborative act.

The judgment of the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the sales amount related to unfair collaborative acts, and the plaintiff's ground of appeal on this part is an issue of the selection of evidence and fact-finding, which are all the matters of the court below's exclusive authority,

2. As to omission in judgment and misapprehension of legal principles as to whether a “serious violation” constitutes “serious violation”

The degree of gravity of a violation caused by an unfair collaborative act shall be determined by comprehensively taking into account the degree of undermining competition order caused by the violation, the influence and ripple effect on the market, the degree of damage to the relevant consumers and enterprisers, whether to acquire unjust enrichment, etc. (see Supreme Court Decision 2009Du1505, Sept. 8, 2011).

After compiling the adopted evidence, the court below acknowledged the facts as stated in its holding. The court below determined that the unfair collaborative act of this case is sufficient to regard it as "an act of unfair collaborative act" on the grounds that 8 companies, including the plaintiff, etc., engaged in the act of jointly determining the price exceeding 95% of the market share in the PEF product market, which is large to the extent of undermining competition order among the enterprisers, and thus, it cannot be said that there are considerable impacts on the PEF product market on the nation-wide scale

The judgment of the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the degree of seriousness of unfair collaborative acts. In addition, the judgment below did not err in omitting judgment as alleged by the plaintiff

3. As to the misapprehension of legal principles as to the applicable law of reduction of penalty surcharge following investigation and cooperation

Article 35 of the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 20360, Nov. 2, 2007) (amended by Presidential Decree No. 20360, Nov. 2, 2007) provides that “The former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 18768, May 31, 2005) shall apply Article 25 of the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 18768, Nov. 4, 2007) (amended by Presidential Decree No. 18768, Nov. 2, 2007) to the effect that the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 20360, Nov. 2, 2007) shall apply Article 35 of the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 18751, Nov. 2, 2007) to the effect that the former Enforcement Decree shall apply to voluntary voluntary reporting 1014.

According to the facts acknowledged by the court below, the unfair collaborative act of this case was commenced on September 1, 199 and terminated on October 1, 2007, and all participating companies were jointly engaged in the collaborative act of this case, Meti City, Mapo-si Co., Ltd., and Mapo-si Co., Ltd., and Mapo-si Co., Ltd., followed the following, made a voluntary report or investigation cooperation as to the collaborative act in sequence, and the plaintiff cooperateed in the investigation of the defendant around March 2008.

Examining these facts in light of the aforementioned legal principles, the Plaintiff does not fall under the “the first person or the second person to provide independently evidence necessary to prove an unfair collaborative act” subject to the reduction of penalty surcharges under Article 35(1) of the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 20360, Nov. 2, 2007).

The conclusion of the court below to the same purport is acceptable, and there is no error of law by misunderstanding the legal principles as to the application of penalty surcharge reduction and exemption to investigators and cooperation.

4. As to the misapprehension of legal principles as to the deviation and abuse of discretionary power

After compiling the adopted evidence, the court below acknowledged the facts as stated in its decision, and determined that the penalty surcharge against the plaintiff was an excessive penalty surcharge calculated based on the sales revenue related to the violation of this case, and the aggregate market share of the persons who are affiliated with the plaintiff and were involved in the unfair collaborative act of this case reaches 40%, and the degree of the plaintiff's participation in the unfair collaborative act of this case is not lower than that of other enterprisers, and there are reasonable grounds for difference in the rate of exemption or reduction of penalty surcharge between the persons who participated in the unfair collaborative act of this case and those who participated in the unfair collaborative act of this case, and thus, there were no errors of deviation or abuse of discretion in the imposition of the penalty surcharge of this case against the plaintiff.

The judgment of the court below is just, and there is no error in the misapprehension of legal principles as to deviation and abuse of discretionary power in imposing penalty surcharges on unfair collaborative acts.

5. Conclusion

Therefore, the appeal is 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 Sang-hoon (Presiding Justice)