[2] In a case where a person involved in an unfair collaborative act who started before the enforcement of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act ( April 1, 2005) and terminated before the enforcement of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 20360) (amended by Nov. 4, 2007), files a voluntary report or cooperate in investigation after November 4, 2007, the statutes applicable to the criteria for mitigation or exemption thereof, etc.

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 relevant unfair collaborative act. 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 type and purpose of the goods or services included in the agreement between the enterpriser and the other enterpriser, the alternative transaction area, transaction counterpart, stage, etc. (see, e.g., Supreme Court Decision 200Du1681, Feb. 38, 2001

The court below determined that the price of ordinary fPF (hereinafter referred to as "FF") is a structure where the price of the general fPF product block (concentration 15 km/metres) is set first, on the basis of the price of the basic product, if the price of the general fPF product is set first, the price of the other fPF product is set depending on whether the characteristics such as smoke, color, altitude, etc. are added. During the period of the collaborative act in this case, three buildings in the Gyeongnam area in the Gyeongnam area were set at a separate meeting whenever the price of raw material is increased, the three buildings in the Gyeongnam area are set at a different meeting and the sales cost of the LF (hereinafter referred to as "LF"), and the price increase of the LF product for the automobile is included in the sales price of the automobile products at the request of the supplier of the automobile products, such as the plaintiff, etc., after investigating the unit price of the automobile products at the request of the supplier of the automobile products, and then the price agreed between the plaintiff and the supplier.

The judgment of the court below is just in accordance with the above legal principles, and there is no illegality in the misapprehension of legal principles as to the sales related to unfair collaborative acts. In addition, other grounds of appeal as to this part of the ground of appeal by the plaintiff is an issue of the selection of evidence and fact-finding, which are the exclusive authority of the court below

2. As to the assertion of 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 on the market and its ripple effect, the degree of damage to the relevant consumers and enterprisers, and whether to acquire unjust enrichment (see Supreme Court Decision 2009Du15005, Sept. 8, 201).

The lower court determined that the instant collaborative act was an act jointly conducted by eight companies, including the Plaintiff, etc. with a market share exceeding 95% in the FPF product market, and the effect of restricting competition is clear that the effect of restricting competition is likely to occur and the effect of increasing efficiency is unlikely to occur throughout the country, and thus, it is sufficient to regard the instant collaborative act as an “an act of significant violation.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no violation of law such as misunderstanding of legal principles as to the degree of seriousness of unfair collaborative act. In addition, there is no illegality of omission of judgment as alleged by the plaintiff

3. As to the misapprehension of legal principles as to average sales

Article 22 of the former Monopoly Regulation and Fair Trade Act and the main text of Article 9(1) of the former Enforcement Decree of the Fair Trade Act stipulate that an enterpriser who has engaged in unfair collaborative acts shall impose a penalty surcharge not exceeding the amount obtained by multiplying the average sales for the immediately preceding three business years by 5/100. As such, setting the upper limit of a penalty surcharge based on the average sales for the immediately preceding three business years is intended to take into account the enterpriser’s financial ability when a penalty surcharge is imposed (see, e.g., Supreme Court Decision 2010Du2548, Sept. 9, 2010). Therefore, it is reasonable to deem that the average sales refer not to the average sales related directly or indirectly to the unfair collaborative act, but to the average sales for

In the same purport, the court below is just in rejecting the plaintiff's assertion, that although the amount of real estate rent or export of raw materials is included in the plaintiff's sales amount according to corporate accounting standards, the sales should be excluded from the calculation of average sales amount as it is temporary or overseas subsidiaries, and there is no error in the misapprehension of legal principles.

4. As to the misapprehension of legal principles as to the application of reduction and exemption of penalty surcharges 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 35 of the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 18768, Nov. 4, 2007), which provides that “The former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 18768, Nov. 2, 2007) shall apply to a penalty surcharge for acts terminated before this Decree enters into force (amended by Presidential Decree No. 20360, Apr. 1, 2005)” (the former Enforcement Decree of the Fair Trade Act shall apply Article 35 of the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 18701, Nov. 2, 2014, 207).

According to the reasoning of the judgment below, the court below acknowledged the fact that the plaintiff cooperates in the investigation by the defendant around October 1, 2009, although the unfair collaborative act of this case commenced on September 1, 1999 and terminated on around October 1, 2007, and determined whether the plaintiff constitutes the reduction of penalty surcharge as an investigator by applying Article 35(1) of the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 20360, Nov. 2, 2007).

The application of such statutes by the court below is justified, and there is no illegality in the misapprehension of legal principles as to the applicable statutes.

5. 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 illegality in the misapprehension of legal principles as to deviation and abuse of discretionary power.

6. Conclusion

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

Justices Ahn Dai-hee (Presiding Justice)