[2] In a case where a party’s assertion and proof as to the amount of damages are insufficient despite the existence of damages caused by a tort, whether the measures to be taken by the court and the above legal principle likewise apply to the case where the court recognizes the amount of damages by applying Article 57 of the Monopoly Regulation and

1. As to the third ground for appeal

For the reasons indicated in its holding, the lower court determined that it is difficult to view that Defendant EmIO Co., Ltd. (hereinafter “Defendant EmI”) committed the instant collaborative act or aided and abetted the instant collaborative act by jointly with the KS Energy Co., Ltd., Defendant AmIx Co., Ltd., the litigation taking over the Defendant EmI, and Defendant Hyundai Daily Bank Co., Ltd. (hereinafter collectively referred to as “the combined Defendants”), or by aiding and abetting the instant collaborative act by the collusion Defendants, and it is difficult to view Defendant EmI to have increased the price of transit supplied by oneself as affected by the instant collaborative act, and also, it cannot be held that the collusion Defendants are liable for damages according to their market share.

Examining the record in accordance with the relevant legal principles, the above determination by the lower court is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the liability for damages caused by collusion.

2. As to the grounds of appeal Nos. 1, 2, and 4

A. The judgment of the court below

(1) Under the premise that the plaintiffs' damages caused by the instant collusion can be calculated as "purchase volume by plaintiff x excess price per liter (actual purchase price - virtual competition price)" : ① the first instance court's first instance court's order to submit taxation information to the National Tax Service (hereinafter "tax information data") and calculated as the average daily purchase amount calculated from the purchase price by the first instance court (from January 1, 2004 to June 30, 2004) / the number of days of the instant collusion period (from April 1, 2004 to June 10, 2004) multiplied by the number of days of the instant collusion period, the plaintiffs sought the purchase price by the plaintiff / through each of the instant collusion period / the average purchase price by the plaintiff / through each of the above bidding period / the price by the Korea National Oil Corporation after deducting the purchase price by the price by the first instance court's order by the Korea National Oil Corporation (hereinafter "the price by the Korea National Oil Corporation") / the price by the Korea National Oil Corporation.

(2) On the grounds delineated below, the lower court rejected the Plaintiffs’ claim for damages against the collusion Defendants, on the grounds that the volume of the Plaintiff’s purchase of light oil supplied by the collusion Defendants during the instant collusion period is not specified (see, e.g., Supreme Court Decision 2009Da15488, Apr. 2, 2009) and the excess price caused by the instant

(A) With respect to taxation information data, the sum of the price paid by the plaintiffs for the purchase of light oil (referring to gasoline, light oil, and diesel) during the overall period of 2004 and the gas station that purchased the oil can only be known, and it cannot be known whether the purchase time is within the collusion period, whether the purchased oil is light oil, and which oil is supplied by the oil refinery. In addition to the result of the fact-finding survey on oil subsidies to each local government (it can be known that the timing of purchase and the purchase volume can be known; hereinafter “oil subsidy data”) by the court below and the result of fact-finding on the gas station association (it can be known which kind of oil is supplied by the gas station; hereinafter “the gas station association data”), it is not specified in the case of plaintiffs 377 and 383 (Plaintiff 49, 509).

(B) The domestic transit market is an over-point market and it is difficult to view the two markets as an identical or similar market because the factors for price formation, such as the structure and terms and conditions of the market, are different in comparison with the global oil market which is close to the complete competition market. The domestic oil markets do not import finished products from the international oil market and supply them to consumers as they are, but supply them as they are. The method of adding the costs and expenses prescribed by the Government Accounting Standards to the MOPS price is erroneous from its start, and even if the domestic transit price is linked to the MOP price, it is not clearly stated that the additional cost and expenses are added to the calculation method for the government accounting standards for the determination of the successful bid price of government goods for the general consumers. In addition, it is unreasonable to use the government accounting standards for the determination of the successful bid price of government goods for the general consumers. There is no objective basis for profit-making by the Plaintiff’s report, and the above report is based on the MOPS price of the 0.5% MPS price of the products.

B. The judgment of this Court

(1) In cases where it is extremely difficult to prove facts necessary to determine the amount of damages due to the nature of the pertinent fact despite the existence of damages in a lawsuit seeking compensation for damages arising from a violation of the provisions of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”), the court may recognize a reasonable amount of damages based on the purport of the entire pleadings and the result of examination of evidence pursuant to Article 57 of the Fair Trade Act. This purport is to realize the ideal and function of the compensation system for damages, the principle of guiding fair and reasonable apportionment of damages by reducing the degree of proof and conviction in cases where it is extremely difficult to prove facts necessary to determine the amount of damages even though the existence of damages is recognized, in light of the nature of the pertinent fact. Therefore, when the court recognizes the amount of damages by applying the above provision, it must make the best efforts to investigate indirect facts that form the basis for calculating the amount of damages, and calculate the amount of damages objectively acceptable by reasonably evaluating and evaluating the indirect facts found (see Supreme Court Decision 2010Da58728, May 13,

Meanwhile, where it is recognized that damage was caused by a tort, even if the parties’ assertion and proof are insufficient to prove the amount of damage, the court shall actively exercise the right to request explanation and urge the verification, and depending on the case, the court shall deliberate and determine the amount of damage ex officio (see Supreme Court Decisions 85Meu2453, Dec. 22, 1987; 2010Da103451, Jul. 14, 201). The foregoing legal doctrine likewise applies to cases where the court recognizes the amount of damage by applying Article 57 of the Fair Trade Act.

(2) According to the reasoning of the judgment below, the plaintiffs (1) purchased light oil supplied by the defendants during the first period of 2004 in the case of the plaintiffs other than the plaintiffs listed in the attached list of the plaintiffs (2) b) and the plaintiffs listed in the attached list of the plaintiffs (3-3-2). hereinafter referred to as "1 group plaintiffs"), but it is not known that any kind of light oil supplied by the defendants was purchased, or that the defendants purchased light oil supplied by other static or importing companies other than the collusion defendants. (3) On the other hand, the plaintiffs listed in the attached list of the plaintiffs (3-3-2 of the reasons of the judgment of the court below) stated in the attached list of the plaintiffs (hereinafter referred to as "2 group plaintiffs") were the plaintiffs who supplied light oil supplied by any kind of light oil during the first period of 2004 through taxation information data and the materials of the gas station association, and the plaintiff 206 others and 371-381 of the defendants purchased light oil supplied by the defendants.

(3) We examine Group 1 Plaintiffs in light of the aforementioned legal principles and the above facts.

1 Group 1 Plaintiffs purchased light oil during the first half of 2004, but it is not possible to ascertain whether they purchased light oil supplied by the collusion Defendants, or since they are supplied with light oil from static oil or import companies, etc. other than the collusion Defendants, they cannot be deemed to have caused damage arising from the instant collusion. Therefore, Group 1 Plaintiffs’ claim should be rejected without any need to further determine the amount of damage.

The lower court’s determination on this part is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the occurrence and certification of damages caused by collusion and Article 57 of the Fair Trade Act.

(4) We examine Group 2 Plaintiffs in light of the aforementioned legal principles and the above facts.

(A) Group 2 Plaintiffs purchased light oil supplied by the collusion Defendants during the first half of 2004, and in light of the fact that they are operators of freight trucks, dump trucks, and ready-mixeds, it is reasonable to view that they purchased light oil all through transit. Unless there are other special circumstances, it is reasonable to view that they purchased light oil during the first half of the collusion period (from April 1, 2004 to June 10, 2004) which is a relatively high-quality season. Ultimately, Group 2 Plaintiffs are deemed to have purchased light oil supplied by the collusion Defendants during the collusion period. In light of the distribution structure of the domestic transit market and the retail price determination structure of the transit market, the increase in the supply price due to collusion in the domestic transit market is deemed to have been increased by retail price, and thus they should be deemed to have suffered damage from the collusion act in this case.

(B) Therefore, in the case of Group 2 Plaintiffs, it is necessary to calculate the amount of damages arising from the instant collaborative act.

① First, in order to calculate the amount of damages of Group 2 Plaintiffs, the aforementioned Plaintiffs should grasp the quantity of light oil purchased during the collusion period. The accurate quantity of light oil purchased during the collusion period can be found to be supported by oil subsidy data. According to the records, most Group 2 Plaintiffs in the lower court’s hearing process were sent a fact-finding inquiry about oil subsidy data to each local government, but they cannot be confirmed on the ground that five years have passed since it was not the competent authority, or the document preservation period. In this case, the oil subsidy data needed in this case are related to oil purchase during the overall period of 2004, and the first instance court’s first instance trial was conducted mainly during the date of preparatory hearing, and it is extremely difficult to prove the quantity of light oil purchased during the second time during the collusion period, and thus, it can be seen that the Plaintiffs’ purchase amount can be computed by applying Article 507 of the Fair Trade Act to the objective method of calculating the quantity of light oil purchased by each Plaintiff (see, e.g., Supreme Court Decision 2007Da52726, Sept. 27, 206, 207).

② Next, in order to calculate the amount of damages by Group 2 Plaintiffs, the virtual competitive price or excess price should be grasped in accordance with the above provisions. As such, Article 57 of the Fair Trade Act can be applied to those cases because the virtual competitive price or excess price is extremely difficult to prove due to its nature. Examining the record in accordance with the aforementioned legal principles, even if Article 57 of the Fair Trade Act is applied, the amount of damages arising from the instant collaborative act cannot be calculated on the basis of the virtual competitive price or excess price alleged by the Plaintiffs, since the virtual competitive price or excess price alleged by the Plaintiffs is not reasonable and objective. However, if Article 57 of the Fair Trade Act is applicable to Group 2 Plaintiffs, the court should have deliberated on the calculation of the virtual competitive price or excess price in accordance with the above provisions, so long as it is recognized that damages were incurred in the case of Group 2 Plaintiffs, and that the price of excess or excess price can be determined on the basis of the methods of calculating the price or excess price by actively exercising the rights of the Plaintiffs, the lower court should have determined ex officio the price or excess price of the price.

(C) Nevertheless, the lower court rejected all Group 2 Plaintiffs’ claims on the grounds that it is impossible to recognize the occurrence of damages without taking the above measures, or that the specific volume of light oil purchased cannot be calculated, and that the virtual competitive price or excess price of the Plaintiffs’ assertion cannot be recognized. In so determining, the lower court erred by misapprehending the legal doctrine on the occurrence of damages caused by collusion, calculation of the amount of damages, certification thereof, and certification thereof, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, among the judgment of the court below, the part of the claim by Group 2 Plaintiffs against the collaborative Defendants is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal by Group 2 Plaintiffs against Defendant E-Mil and the appeal by Group 1 Plaintiffs are dismissed, respectively. The costs of appeal by Group 2 Plaintiffs against Defendant E-M and the costs of appeal by Group 1 Plaintiffs are assessed against the losing parties. It is so decided as per Disposition by the assent

[Attachment 1] List of Plaintiffs: Omitted

[Attachment 2] List of Plaintiffs: Omitted

Justices Lee Sang-hoon (Presiding Justice)