[2] The relationship between the "unfair collaborative act" under Article 19 (1) of the Monopoly Regulation and Fair Trade Act and the "joint refusal of transaction" under Article 23 (1) 1 of the same Act

[3] The meaning of "amount of sales of related goods", which is the basis of calculation of penalty surcharges for unfair collaborative acts under the Monopoly Regulation and Fair Trade Act

[4] The case holding that an order to pay penalty surcharges for an unfair collaborative act was abused or abused by discretionary authority on the grounds that the Fair Trade Commission found the time and termination period of the unfair collaborative act to be erroneous

[2] Even though the "joint refusal of transaction" under Article 23 (1) 1 of the Monopoly Regulation and Fair Trade Act and the "joint act" under Article 19 (1) of the same Act are similar in terms of the result of the act of jointly refusing transaction, it is stipulated as one of the unfair trade practices under the same Act, separately from the joint refusal of transaction under the same Act, and Article 19 (1) 8 of the same Act comprehensively provides that the act of interference with the business activities of other enterprisers is one of the collaborative acts. Thus, the two can be distinguished from the point of view of the core of illegality or regulation, the purpose or form of regulation, and the location of the other party to the refusal of transaction. The "joint refusal of transaction" is the unfair act of jointly refusing transaction for the purpose of excluding a competitor in the relevant market or preventing competition. In other words, if there is a core point of illegality, the "joint act" is to exercise the exclusive power of the participating enterprisers in the relevant market through the collaborative act.

[3] "Sales of related goods", which is the basis for the calculation of a penalty surcharge in an unfair collaborative act, is the sales of goods affected by the violation in the relevant market where the collaborative act occurred, i.e., the sales of goods affected by the participating enterpriser. On the other hand, a violation in an unfair collaborative act is agreed to engage in an act of unfairly restricting competition. Thus, the contents of the agreement and the effect of restricting competition caused by the collaborative act should be determined

[4] The case holding that an order to pay penalty surcharges for an unfair collaborative act was abused or abused by discretionary authority on the grounds that the Fair Trade Commission found the time and termination period of the unfair collaborative act to be erroneous

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 is borne by the plaintiff and the remainder 1/3 by the defendant.

A. Status of the parties

(a) seven cement makers;

The following companies, including the plaintiff, are enterprisers engaged in cement manufacturing and selling business, and are enterprisers under Article 2 subparagraph 1 of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Act"), and the general status of each company is as shown in Table 1 < Amended by Presidential Decree No. 1>

< Remark 1> General Status of Company < by Presidential Decree No. 20024, Feb. 1, 2000>

The date of establishment of net profit of the capital of both joint-related companies included in the main text of this Act, shall be Twelve manufacturing 9,353 11,650 650 May 14, 1962, 505,242 505,242 563 5,202, 9586,4230 650 657 2,265 2,265 4,503 60 2,57 2,453 607, 1965 2,57, 254, 254, 607, 3607, 27, 367, 367, 208, 1963, 25, 165, 36, 24, 1965, 196

* Not more than * The above companies are used to reduce them into “balm”, “Dongyang”, “sex” or “Plaintiff”, “Maz”, “Maz”, “Korea-Japan” and “ASEAN” respectively, and they are collectively referred to as “the instant companies” including the Plaintiff.

(ii)the Korea Fisheries Association;

The Korea Cement Industry Association (hereinafter referred to as the "Cement") is an organization established by the entrepreneurs engaged in cement manufacturing and sales business to conduct research and research related to the cement industry, to promote the development and profit-making of cement industry, to conduct various statistical affairs related to cement industry, and falls under the category of the enterprisers' organization referred to in subparagraph 4 of Article 2 of the Act, and the general status thereof is as shown below < Amended by Presidential Decree No. 22190, Dec.

Table 2 < by Presidential Decree No. 1870, May 31, 2003>

The 11th General Affairs Team, technology team, and planning team of 2,863 million won, 19 August 29, 1963, the number of full-time employees in the calendar year included in the main sentence, the number of budget members in 2003.

The members of the two associations shall be 11 companies as of the end of May 2003, and the oil of the members companies shall be produced white cement, and cement types and production areas manufactured by each member company shall be as follows: < Amended by Presidential Decree No. 20690, May 3, 2003>

The Cement production and production area for each member company of Table 3>

The head of the Dong-gu cement production area in the main sentence and the head of the Dong-gu and the head of the Dong-gu, and the members of the Dong-gu, the Gayang, the Gaw, the Gaz - Coastal manufacturing area: Twin, the Gaw, the Gaw, the Gaz, the Gaz, the Gaz, the Gaz, the Gaz, the Gaz, the Gaz, the modern, the Gaz, the Gaz, the Gaz, the consideration, the - the internal chemical research on the slock, the Gaz, the Gaz, the Gaz, the Gaz, the Gam of the Republic of Korea.

- Inland-to-land survey: Maternology, Handay, Hyundai, Syriayang and Yangcheon (Plaintiffs), Handay, Hyundai, ASEAN, Sysia, Tranchising Cement Cement Cement, Raz, Consideration, Maz, Posting, Korean Duna and Korean Duna

(b) Present status of cement industry;

(i)the characteristics of cement industry;

Cement industry is a capital cluster industry that supplies various raw materials used in the construction industry as well as materials directly invested in the construction industry, and is a basic material industry that can produce large-scale production facilities in the early stage. Moreover, cement accounts for 90% of the total production across the country in the East Sea, Talan area and a single-scale area depending on the location of the tin mine which causes the supply of raw materials. This equipment and location industry is not easy to enter anew due to the characteristics of such equipment and location industry.

Cement industry is a domestic co-existence industry where the cost of transport and storage is high due to the gap between the place of production and the place of consumption due to the regional concentration of production facilities, the weight and volume of products, etc., and it is the degree of cement import volume in 2002, which is 1,189,000 tons of cement import volume in 202.1% of the total domestic cement supply volume.

(b) The current supply and demand of domestic cement markets;

Domestic cement demand is high in terms of demand due to the heading and depression of a construction competition, and due to seasonality, demand for April and June, 9 and 11 is concentrated in comparison with the construction cost for 1,2 months. Domestic cement demand in 2002 is 54,294,000 tons increased by 8.5% compared to the previous year due to the increase in the construction competition and the construction permit area, and domestic cement supply status is as shown below the attached Table 4.

Remark 4> Domestic cement supply and demand status (unit: t. unit):

48,000 3,945 51,946 51,255 51,255 518 51,7331,297 50,055,005 3,0555 3,001 53,056 52,046 989 53,035 275,275 54,29222,488 56,7825,514,189 56,77

(3) Market share by company

Domestic cement Manufacturing is composed of about 90% of the market share of the company of this case, including the plaintiff, if the company does not produce white cement (in addition, about 94% of the production capacity) and the market share of each company is as follows: < Amended by Presidential Decree No. 19093, Dec. 1, 2007>

The market share of each company (as of 2002, units: t, %)

In the case of the Plaintiff’s Maschina in the main sentence of this Table, the number of 15,161 10,045 9,686 7,131 8,184 6,864 6,1466 660 61,67 660 61,87 24 May 16, 16, 215, 215, 113. 16. 46. 6. 10 11,843 7, 739 8,0215,60 5,605, 5665, 940 3,476 6, 10754, 108 14. 10, 314. 10, 2014

(iv) A cement distribution and consumption structure;

The general distribution structure from a producer to a consumer is "producer ? Distribution base ? consumer" and most of the distribution bases except for the consumers located in the production site. The transportation cost from the production site to the distribution base is borne by the producer, and the distribution base to the consumer, respectively.

If cement consumption structure is divided by product(pream, packing) into cement consumption structure, approximately 90% of the cement consumption structure is consumed in the form of cream (unsealed). At least 70% of the cement is consumed in the cream container, and the remainder is consumed in the manufacturer of secondary products such as construction companies, bricks and files.

(v)type of cement;

The types of cement are largely divided into one-class ordinary cement (hereinafter referred to as “ordinary cement”) and high-roslveg cement (hereinafter referred to as “slveg cement”) generated in the process of steel processing by mixing high-roslg cement, which is an by-products, into ordinary cement, with a fixed ratio. In view of the data of the two associations on the manufacturing and composition costs of cement by cement, it is analyzed that ordinary cement is manufactured at 92.5% of the cement, 3.7% of the cement, 4% of the cement, 1.3% of the cement, 19.2% of the cement, 19.4% of the cement, 3.0% of the cement, 3.9% of the rock, 42.2% of the sludge, and other 1.5% of the cement cement.

Ordinary cement requires large amount of facility investment in facilities creating a sprinkler, so most of the instant companies are producing most of the instant companies, and slot cement can be produced only with simple production facilities, so there are several specialized companies manufacturing only slot cements in addition to the instant companies. The domestic shipment ratio of ordinary cement and slot cement accounts for approximately 9:1 general cements as of 2002.

(6) The surrounding conditions of cement market

However, some ready-mixed companies have used a certain portion of cement amount invested at the time of manufacture of ready-mixed in substitution for high slock powder (hereinafter “slock powder”) which is compared with cement and slock cement (not 63,200 won of ordinary cement, VAT, slock cement cement 58,000 won, slock cement 53,000 won, slock powder 53,000 won). Accordingly, ready-mixed companies which consume cement in large quantity have considerable interest in the slocking business.

On the other hand, the existing cement companies and both associations oppose the expansion of the use of slots on the grounds of the quality problem of slots and their cement market diving problem.

On the other hand, on April 1, 2003, the Korean Industrial Standards Board recognized KSF 4009 (KSF 2563) as mixed materials at the time of manufacturing ready-mixed.

C. The defendant's disposition

The defendant, together with the plaintiff and other companies of this case (hereinafter referred to as the "Ariju industry") decided to limit cement shipment on the surface of the Ariju industry in order to cope with the defects in promoting the Ariju industry around July 2002, and then to restrict cement shipment on July 15, 2002 to July 26, 2002, the plaintiff, Hyundai, Mayang, Mayang, Mayang, Mayang, Mayang, and 10 to November 30, 202 (hereinafter referred to as the "Iriju industry")'s disposal order 30% of the amount of cement supply for each of the Ariju industry, 100 to 60%, 200, 300, 3000, 400, 1000, 3000, 1000, 300,000,000,000,000.

[Grounds for recognition] The fact that there is no dispute, Gap evidence 1, 2, Eul evidence 1 (including a provisional number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Relevant statutes;

[Attachment 3] The entry shall be as follows.

3. Determination on the legitimacy of the disposition

(a) Formation of unfair collaborative acts;

(1) Summary of the parties’ assertion

The Plaintiff asserts that the instant company, including itself, did not engage in the above unfair collaborative act (agreement) as well as that there was no agreement or substantial restriction on competition that could presume the collaborative act. Accordingly, the Defendant asserts that the instant company committed an unfair collaborative act that interferes with business activities by restricting the amount of supply to the AB industry and U.S., and that it is recognized as a legal presumption provision under Article 19(5) of the Act.

(2) Purport of the presumption of collaborative act

Article 19(5) of the Act provides that "If two or more enterprisers are engaged in an act falling under any of the subparagraphs of paragraph (1) which practically restricts competition in a particular business area, it shall be presumed that the enterpriser is engaged in an unfair collaborative act even in the absence of an express agreement to do such act." 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 in question was done under the explicit and implied agreement of the enterpriser. It is not easy to prove such agreement due to the nature of the unfair collaborative act closely conducted, and it is not easy for the Fair Trade Commission to prove such agreement." The fact that "the two or more enterprisers are engaged in an act falling under any of the subparagraphs of Article 19(1) of the Act, instead of proving "the agreement of the enterpriser," (hereinafter referred to as "an act practically restricting competition in a particular business area") and that it is "an act practically restricting competition in a particular business area" (hereinafter referred to as "the above two indirect facts are "an act restricting competition" in a particular business area.

(3) The external form of action is identical.

In full view of the purport of the entire pleadings, the following facts can be acknowledged in the statements in Gap evidence Nos. 1, 2, 5, and Eul evidence Nos. 1 to 9.

(A) Restrictions, etc. on the supply to the Asian industry

레미콘업체들은 앞서 본 바와 같이 레미콘 제조에 투입되는 시멘트의 일부분을 슬래그분말로 대체하는 것이 생산성, 경제성 등에서 유리하다는 이유로 종전부터 슬래그분말 제조사업에 관심을 가져왔다. 이에 유진레미콘은 1999. 8.경 동양시멘트의 전신인 동양메이저 (주)로부터 슬래그분쇄설비를 매입하고 관련 근로자들을 인수함과 아울러 기초소재를 설립한 뒤 2001. 1.경부터 슬래그분말을 생산ㆍ판매하는 한편, 인천 북항의 부두건설을 계획하고 일본으로부터 고로슬래그의 수입을 추진하였다. 아주산업 또한 2002.경 싱가포르의 S3 Technologies PTE Ltd.사(이하 ‘S3사’로 줄여 쓴다)와 간에 합작투자회사를 설립하여 슬래그분말사업을 영위하려는 계획을 추진해 오다가 2002. 8. 19. 합작투자계약을 체결하고 주식회사 브이쌤(이하 ‘브이쌤’이라 한다)을 설립한 뒤 인천에 슬래그분말 제조공장을 건설하는 사업을 추진하였다. 한편, 양회협회 회원사의 하나인 대한시멘트 (주)도 2002. 5. 이전부터 군산에 자사의 슬래그시멘트 공장을 건설하기 위한 계획을 추진하고 있었다.

On July 13, 2002, the non-party, who is the vice-chairperson of the two associations, visited the Asian industry to raise a question of quality of slots and KS standards, etc., and the Slovas powder terminal business has an impact on the existing cement industry, and demanded to postpone the Slovas terminal business by joint venture with the above S3 company. At the time, the non-party was requested by the two associations to confirm the Slovas group on the Slovas terminal business of the Auss main industry and to accept business inventory recommendations, etc. before visiting the Auss main industry.

After that, from July 15, 2002 to July 26, 2002 (the first supply restriction), the amount of cement supply to the respective Asian industries (the second supply restriction) from October 20, 2002 to November 30, 2002 (the second supply restriction) was limited to the existing 60% level. Specific details are as follows: < Amended by Presidential Decree No. 17791, Oct. 20, 2002; Presidential Decree No. 17813, Nov. 30, 2002>

â……………………6) present shipping status by the date of Aju Department, 202 (unit:t)

본문내 포함된 표 일 자 아세아 현대 동양 성신 일자 아세아 현대 성신 7. 12. 1,044.68 1,184 810 152.87 10. 18. 871.67 1,770 51.24 7. 13. 1,151.99 897 836 203.73 10. 19. 773.58 1,977 51.01 7. 15. 464.36 568 404 153.57 10. 21. 585.69 1,313 102.65 7. 16. 513.41 622 481 50.85 10. 22 585.44 922 102.15 7. 17. 539.36 588 489 51.27 10. 23 584.97 866 51.17 7. 18. 613.00 591 368 76.24 10. 24 610.15 918 76.72 ㆍ ？ ？ ？ ？ ㆍ ？ ？ ？ ㆍ ㆍ 7. 22. 692.38 531 476 50.5 11. 23. 175.05 562 51.11 7. 23. 176.49 257 152 25.83 11. 25. 200.39 566 51.12 7. 24. 182.52 258 155 25.46 11. 26. 200.17 540 51.4 7. 25. 180.52 281 159 25.78 11. 27. 225.31 567 51.4 7. 26. 307.33 1,418 867 203.42 11. 28. 430.64 853 51.0 7. 27 1,399.45 1,026 3,905 304.77 11. 29. 454.85 982 50.75 7. 28. 486.08 0 3,441 356.19 11. 30. 481.64 884 51.43

* The Plaintiff supplied 3,944t (4%) out of the total consumption quantity of the Aju industry in June 2002 to 3,944t (95,825t) and immediately before the beginning of the supply restriction, immediately before the beginning of the supply restriction, the Plaintiff voluntarily reduced the supply at the same time as that of another company. Furthermore, according to the monthly supply cost of the Aju industry in comparison with the Plaintiff’s total domestic total shipment volume, even if it was cement water in October 2002 and November 2002, it appears that the share was sharply reduced, but the supply restriction has increased again in December.

According to the “business report from among the absences,” prepared by the employees of the cement team of pairs on July 22, 2002 during the period of the first supply restriction, the said period stated “joint response (7/15) by cement suppliers following the promotion of the cement industry slurries (g/15) / Cement supplier’s volume of shipment of cement suppliers (on the face, hys, hys, sex, wals) 50 per cent (on the face of reasons: shortage of inventory).”

On July 26, 2002, the Ariju industry, according to the above first supply restriction, has caused problems such as reduction of ready-mixed production, exemption from trading lines, and cost increase due to the increase of logistics costs, and confirmed that the Briju industry will suspend slurging business to the two associations. From July 27, 2002, the Criju industry has increased again and normalization.

그런데 아주산업의 합작회사인 위 S3사측에서 사업의 추진을 종용함에 따라 아주산업이 브이쌤에게 슬래그분말공장 설립사업을 계속 추진하도록 하였고 이에 2002. 10. 중순부터 인천의 공장부지에서 토목공사가 진행되자, 위 시멘트회사들은 다시 2002. 10. 20.부터 2차 공급제한을 시작하였다.

이에 계속적인 시멘트수급제한에 대한 부담을 느낀 아주산업은 결국, 2002. 11. 11. 브이쌤에게 공문을 보내 ‘추진중인 인천 슬래그분말공장 건설과 관련하여 양회협회 회원사가 위와 같이 1차 및 2차에 걸쳐 시멘트물량을 줄임으로써 공장가동에 막대한 지장을 초래하고 있으므로, 양회협회와 문제가 원만히 해결되어 시멘트공급이 정상화될 때까지 공사를 중단하여 줄 것’을 요청하였다. 아울러 동양, 한라, 아세아 등의 임원 및 양회협회측과 접촉하여 슬래그분말사업을 포기할 테니 아주산업이 구입하였던 슬래그분쇄 기계를 인수하여 줄 것을 요청하였다. 이와 같이 아주산업과 브이쌤이 사실상 슬래그분말사업을 중단하자, 위 2차 공급제한도 중단되었다.

After that, on June 28, 2003, the Ariju industry sent a document stating that “The E-Council withdraws from the Goslovag's business on the recommendation of the E-Association on November 2002, and our losses incurred from the withdrawal of the business are not the subject, so you want to answer to the specific letter that you have the sex of the E-Association and the specific letter of reply.” On July 2, 2003, the two associations sent the above document of the Ariju industry to 7 copies of the instant company and sent the above document of the Ariju industry to 7 copies of the instant company, and then sent its opinion on the treatment plan.

(b) Restrictions, etc. on the supply of milk containers

As seen earlier, the basic materials have been engaged in the slurg producing business. On March 2003, the practitioners of the instant company gathered in the two associations to discuss a promotion plan for promoting the prevention of the spread of slurgs by gathering them around March 2003. Accordingly, according to this, ① cement-related experts shall be organized and consulted with the Council, ② Members’ planning team shall be organized as a main axis to draw up issues and establish effective countermeasures against the problems and countermeasures for the slurging use of slurgs. Furthermore, according to the document, “the promotion plan for the prevention of the spread of slurgs” prepared by the ASEAN, the detailed business plan was organized to prevent the spread of slurgs, including the opinion of the slurg team (TT) and actually constituted and operated the slurg team around that time.

Since March 2003, the following < by Presidential Decree No. 20130, Mar. 2, 2003> the credit limit, credit limit, credit transaction volume reduction, security increase, etc. have been requested and implemented from March 2003.

Table 7> Details of reduction in credit transactions in relation to the Jinami Con by Company (unit: KRW 00 billion)

The existing credit sales at the same time as the date of the enforcement of the credit transaction amount by the name of the card company contained in the main text, shall be changed to the company's existing credit sales at the same time on April 18, 2003, the development of Incheon Northern Port on April 18, 2003, and the increased credit sales at the same time 530 on May 9, 2003, the increased credit sales at 6036 April 30, 2003, the increased credit sales at the aggressive credit sales at 105 March 18, 2003, the increased credit sales at the same time on April 18, 2003, and the increased credit sales at the same time on April 14, 1003, the increased credit sales at the same time on March 18, 2003, and May 23, 2005.

The cement supply amount after April 2003, a construction completion machine, was substantially limited compared to cement supply amount in 1 and 2 months of the same year, such as Table 8, 9, 10 of the same year, the construction cost type of cement supply, as shown in Table 8, 9, and 10 of the same year.

The monthly cement shipment trends (units :t) for each company under Table 8 < Amended by Presidential Decree No. 2035, Feb. 2, 2008>

on December 5, 2003, the part of the table contained in the main sentence of this Decree 46,130 38,652 47,180 33,503 22,218 Raz 18,688,688 17,889 18,712 10,219 6,797 Maz (Plaintiff) 18,053 10,257 13,492 15,573 12,755 13,75317,64635,81221,69,689 14,689 626,827,574,6364,675,647,975 765,674,675,675,967,64,675,675,674,675

â………………………………………§)) of the supply costs for each company.

on January 5, 2003 part of the table contained in the main sentence, 9.79 8.79 6.73 4.78 3.02 Raz 4.59 4.89 18 2.89 1.62 2.63 2.63 2.62 1.63 5 1.5 6.36 7.45 4.41 4.95 Gaz 3.28 3.61 1.42 0.65 0.5 0.64 0.5 00 64 1.5 1, 195 1.5 1, 283 2.6 1, 420.45 0.6 0.56 0.222

* Company by company (monthly cement supply for milk ready-mixeds) / (monthly total monthly shipment) x 100%

< The supply cost in comparison with the monthly supply cost in 2002 for the Jindo Co., Ltd. for each company (unit: 10%)

The part of the table contained in the main sentence of February 5, 2003, 161.7 July 177, 139.6 81.9 Raz 47.0 8 197 Sep. 351, 397, 116.0 Maz 48.39.8 39.8 Maz (Plaintiff) 116.0 52.7 138.7 52.7 1, 1009 Sep. 7, 101, 109 ia of September 8, 2009 8, 248 0.0 0 October 8, 26969

* Company (Amount of supply in the same month 2003) / (amount of supply in the same month 2002) x 100 per cent, and both parties have no actual results of transactions in the year 2002.

Based on the daily shipping status of the company of this case, the starting date of restricting the amount of supply is specified as follows: < Amended by Presidential Decree No. 11>

< Remark 11> The beginning date of restriction on cement supply by company

On March 17, 2003, April 21, 2003, April 21, 2003, 2003, April 23, 2003, 1,2021,2021,0481,023, 797202, 82063935 42350142,502 from April 23, 2003, from April 23, 2003, the date of commencement of the restriction on the use of pairs in the Dong-gu Pacos (Plaintiffs) in the part of the head sentence. < Amended by Presidential Decree No. 17574, Apr. 23, 2003>

The document of “industry trend” written by the Raz around May 2003 states that “at present, our country pressures rush by means of restricting the quantity, but .. even though there is a difficulty in supplying rush to a certain rate, us has the appraisal that she is the highest before the restriction on quantity, she has the highest level of supply.” In addition, “the schedule of the quantity allocation of a progressive affiliated company” states that “the headquarters plan, the daily allocation plan from March 17, 2003 to March 30, 200”, “the shipment as of the end of March, 200,” “the increase that she inevitably reduces the quantity in terms of conditions by pressureing the conditions of the trade (bill date, security, etc.)”, “the head office must continuously support the quantity that she wants in rush,” and that the content of the transaction conditions, such as the company’s head office, etc., should be stated as follows: (i) the formation of the company’s image.

In addition, on April 30, 2003, the head of cement business division, etc. of the company of this case discussed the " thorough demand for quality control of ready-mixeds used in the slurg powder" case, which included the quality issues of ready-mixeds collected from the two associations on April 30, 2003, and the responsibility for the use of slurg powder, etc., and then notified the company of this case and the construction that they purchase their cements under the name of the company of this case.

Meanwhile, from around May 2002 to May 2003, 2003, the officers of the Eastyang, the officers of the Korea-Japan and the vice-chairpersons of the non-party association et al. were mentioned as follows: “The basic materials are not sold outside the slots from January 2003 to the outside, and only make self-consumption and reduce the amount of production against the outside,” and “the cement industry does not allow any competitive goods or substitute goods that threaten us,” and “the permission of the cement industry shall not allow any competitive goods or substitute goods that threaten us.”

Around May 13, 2003, the president of the Jin-uncom sent documents to the two associations, including the contents of “the renunciation of the development plan for the North Korean ports of Mancheon-do,” “the scope of the supply of the products of the basic material is limited to self-consumption” due to self-consumption due to the restriction on the supply of the products. On May 28, 2003, the president of the Jin-uncom, the president of the two associations, and the vice-president of the two associations, and the executive officers of the two groups, written waivers of the intent to reduce and restrict the end-of-the-day business in the future.

(C) CITUUD - Any act interfering with or restricting other enterprisers' business activities.

Comprehensively taking account of the above facts, even though all companies did not conduct the act of implementation at the same time, the companies of this case, as a whole, had a common perception that they jointly deal with the other companies' slot club business, directly and indirectly communication and exchange of information, request for the suspension or restriction of business with respect to the Asian industry and basic materials, and directly restrict cement supply to each of the above companies, shall be deemed to have achieved consistency with the external form of the restriction act.

(Y) Even if the act of cement supply restriction was not carried out by all of the instant companies, and a part of the companies seem to be in conflict with it, such as increasing lump sum supply, it is not simply a refusal refusal called cement supply restriction, but a comprehensive business obstruction and restriction act that, as a means of the most direct action of cement supply restriction, recommends or pressures to waive or reduce cement supply restriction as a whole, it is a comprehensive business obstruction and restriction act that is identical to the external form of such an act, since it does not affect the conclusion that such an act corresponds to the external form of an act).

(4) Substantial competition-restricted

(A) General theory

Article 19(5) of the Act provides that “competitive restriction on competition” of the act in question, which is to be proved in order to presume the agreement of enterprisers, refers to the restriction on competition before the agreement is presumed, so the existence of such restriction on competition should be determined by taking into consideration the market share of enterprisers who conducted the act in question, the characteristics and current status of the goods and markets produced and sold by the enterpriser in question, and the impact of the act in question on the competition of the market and enterprisers in a certain area, and whether the act in question causes or is likely to cause impacts on the determination of price, quantity, quality, other transaction terms, etc. according to the intent of the enterpriser or enterprisers' organization (see Articles 2, 8 and 8-2 of the Act, 99Du6514, 6521, 6521, 203, May 28, 2003).

(b)mutual relationship between cement manufacturing business, ready-mixed manufacturing business, slot powdering business;

Since the reality is that ready-mixed companies use a certain part of cement, which is a raw material input in manufacture of ready-mixed, as a substitute for slot powder, there is an increase in the number of business operators running slot powder business or an increase in external sales, and there is a large number of business operators actively participating in the market, so demand for slot powder is expected to increase and demand for normal cement is expected to decrease, and accordingly, competition in cement markets including cement powder is likely to be promoted, such as lowering the price of ordinary cement in order to increase cement sales.

On the other hand, while cement manufacturing 7 companies, which are the instant companies, occupy approximately 90% in the domestic cement market, the number of re-mixed companies which consume most of cement products, has reached 614 as of the end of 2002 nationwide (data of the Korea re-mixed Association) and re-mixed companies due to the difficulty in the absence of cement storage facilities and storage, etc., generally, cement manufacturing is in a superior position against re-mixed companies through a decision on whether to supply cement products.

In this situation, if cement manufacturing is carried out at the same time, restrictions on the supply of cement, which is a raw material for cement manufacture, to ready-mixed companies related to the cement market, it would infringe on the freedom of competition by restricting the free trade between cement manufacturing companies, and at the same time, it would reduce the competition in cement market by preventing new entry into cement market and eventually, it seems that the existing cement manufacturing is in the situation where cement manufacturing actually has the power to exercise the market power by spreading cement market into cement market.

(C) restrictions on competition in the conduct of the AH industry;

As seen earlier, the fact that the sum of the market share in the Plaintiff, Hyundai, ASEAN, and Dongyang up to about 46.4% to 49.4% of the market share in the Ariju industry (see attached Table 5*), the two associations requested the Ariju industry to suspend or postpone the implementation of the Crijuma business, and the above companies entered the restriction of supply at the same time. If the two associations were to be affiliated with the Triju industry, 7 companies, which are parties to the two associations, occupy 90-94% of the market share, and their intent can be seen as the intent of the two associations. In addition, if the companies were to discuss and jointly deal with cement powder business before and after the above restriction period, the company's products are generally likely to have a large quantity of products, such as the place of consumption and the place of production, the place of production, and the place of supply, and the quantity of the cement products are likely to have a large quantity of products, and thus, the company's products are likely to have a large quantity of supply and other related factors.

In addition, as to the above secondary supply restriction, although the aggregate of the market share of the remaining companies due to the failure of the East at this time of the restriction on supply was 32.1% or 33.2%, as seen above, the second supply restriction cannot disregard a series of superior relationships in that the first supply restriction was temporarily interrupted due to the suspension of the Ariju industry slurging business, and the second supply restriction was conducted at the time when the Ariju industry intends to implement its business again, the second supply restriction also constitutes an act practically restricting competition in cement trade.

(D) Restriction on competition in the act of U.S. M. M. M.C.

Companies that have engaged in the restriction on supply of milk-resistant containers are six companies among the 11 members companies of the two associations with the total market share of 78.4% or 87.1%. Considering all the circumstances as seen in the case of the Asian industry, the above restriction on supply constitutes an act practically restricting competition in cement trade.

(5) MUUD - Presumption of Unfair Collaborative Acts (Agreement)

(A) As above, since the acts of interference with and restriction on each of the business activities of the instant companies including the Plaintiff are consistent with the appearance of two or more enterprisers, and the actual restriction on competition is recognized, it is presumed that the act was committed under Article 19(5) and 19(1)8 of the Act, and such collaborative act is unreasonable (However, as to when the above unfair collaborative act was established, it is recognized that it was terminated at any time (as to when the above unfair collaborative act was established).

(B) Determination of the assertion regarding applicable provisions of law

The plaintiff asserts that even if the company of this case engaged in the act of restricting the amount of supply to the Aju industry or U.S., it is a joint refusal of trade with the aim of interfering with competition with the third party, it should be decided by the rejection of trade under Article 23 (1) 1 of the Act.

In terms of the outcome of the joint refusal of transaction, “joint refusal” and “joint refusal” are similar in terms of the joint refusal of transaction, but they are separately stipulated as one of the unfair trade practices under the law. Since Article 19(1)8 of the Act comprehensively provides that the act interfering with the business activities of other enterprisers is one of the collaborative acts, the two can be distinguished in terms of the core of illegality or regulatory purpose, mode of conduct, location of the other party to the transaction refusal. In other words, if there is a core of illegality in that the joint refusal of transaction was an act restricting the freedom of trade by a third party for the purpose of excluding competitors from the relevant market or preventing competition, it is reasonable to view the “joint act” as an illegal act to exercise monopoly power in the relevant market through the collaborative act. However, in this case, it is not the core point of view that the Defendant’s act of restricting cement supply is not only the cement supply of cement products, but also the Defendant’s act of restricting cement supply in terms of the current cement market share at least 90% of the cement market.

In addition, even if the case is considered as a matter of competition between the joint refusal of trade and the unfair collaborative act, as long as the act of the company of this case satisfies the requirements of the unfair collaborative act as seen above, it cannot be said that the defendant applied the unfair collaborative act regulations to it. The plaintiff's assertion is without merit even if it is any mother.

(6) Whether the presumption of agreement has been reversed or not

(A) Summary of the Plaintiff’s assertion

At the time of 202, the Plaintiff was engaged in temporary and irregular small amount of transactions for the resumption of transactions suspended with the Ariju industry. However, even during the instant supply restriction period, the Plaintiff’s supply was more increased compared to other times. Furthermore, during the said restriction period, the said period was not limited to the supply to the Ariju industry.

It is true that the supply amount of the plaintiff's milk containers decreased in comparison with that of 2002, but this is because the demand for factory enlargement, etc. of the above company was temporarily high in 2002. Furthermore, other companies made a restriction on supply while requesting additional security and cash transaction for the so-called so-called so-called so-called "so-called". However, the plaintiff did not take such measures against the so-called so-called so-called so-called "re-con

In addition, the plaintiff was present at the meetings of the two associations at the same level as courtesy and discussed the problems of slots, etc., and there was no consultation about the restriction on supply or the obstruction of business for other business operators.

In full view of these facts, the company of this case including the plaintiff was engaged in a transaction according to the specific market situation and its independent business judgment, so the presumption of the agreement of the collaborative act as seen above should be reversed.

(b) the sales board;

The presumption of an agreement on a collaborative act under Article 19(5) of the Act can be avoided by proving the existence of an agreement on a collaborative act, such as where an externally identical or similar act was conducted independently according to each enterpriser's business judgment without any agreement, or by proving circumstances that an externally identical or similar act was not a collaborative act based on an agreement. Meanwhile, in determining circumstances where the presumption of an agreement on an unfair collaborative act can be destroyed, the presumption may be reduced by taking into account the characteristics and status of the market in the relevant product, characteristics and patterns of the product, the structure of the price, price-fixing structure, and the impact on the market price, status of each individual company in the same kind of transaction, the impact of price change on the individual enterpriser's business profit, market share, etc., legitimacy of the business judgment, the actual situation of direct exchange of opinions between the business operators, and the experience and probability of the agreement at the time of the unfair collaborative act, the degree of 201 economic policy violation should be reasonably considered (see, e.g., Supreme Court Decision 2010Du525.

However, in this case, in light of the overall circumstances as seen earlier, it is insufficient to accept the Plaintiff’s assertion on the destruction of presumption as above, since the same or similar act of the same or similar act of the Plaintiff, including the Plaintiff, was conducted independently according to their respective business judgment without any agreement, even though it was conducted independently from the Plaintiff’s external interference of business activities, or there is insufficient circumstance to accept the Plaintiff’s assertion on the destruction of presumption as above.

B. Whether a specific disposition is lawful

(1) Action suspension and disclosure order;

As above, it is recognized that the Plaintiff violated the provisions of Article 19(1) of the Act by engaging in an act that interferes with or restricts the cement supply business of another business operator by jointly with the instant company by means of a restriction on cement supply. As such, the Defendant may issue an order to publicly announce the fact that the Plaintiff has received a corrective order (this refers not only to the previous act but also to the prohibition of the same or similar act in the future) and the fact that the Plaintiff has received a corrective order as necessary for correction pursuant to Article 21 of the Act. This part of the corrective order is lawful.

(2) Whether the order to impose a penalty is lawful

(A) Criteria for calculating the Defendant’s penalty surcharge

According to the statements in Gap evidence Nos. 1 and 2, the defendant is recognized to calculate the penalty against the plaintiff on the following basis:

1. The period of violation of the law, which is the basis of the calculation of a penalty surcharge, shall be the termination date of the date on which the company in this case moves the details of the agreement on the supply of cement to the relevant ready-mixed company on the actual implementation, and the details of the agreement are as follows: < Amended by Presidential Decree No. 12790, Mar. 1, 2007>

< Remark 12> Period of violation of law by Company

In the case of the head of Si/Gun/Gu (hereinafter referred to as the "head of Si/Gun/Gu") on July 15, 2002 and July 26, 2002 through July 15, 2002, and November 30, 2002; and the head of Si/Gun/Gu on October 15, 2002 through October 30, 201. < Amended by Presidential Decree No. 17807, Jul. 15, 2002; Presidential Decree No. 17817, Oct. 26, 2002; Presidential Decree No. 17780, Oct. 26, 2002; Presidential Decree No. 17874, Oct. 26, 2002; Presidential Decree No. 17517, Oct. 20, 2002; Presidential Decree No. 17517, Mar. 3, 2013>

*Korea has not conducted the agreed terms and conditions because they are not related to the slurging business with ready-mixeds related to the slurging business.

* The Defendant calculated the penalty surcharge on September 2, 2003, prior to the date of resolution, on which the termination date was determined, by deeming that the above company’s illegal act against the U.S.M. company continues to exist without the completion date of the instant disposition.

(2) The relevant sales that are the basis for the imposition of penalty surcharges shall be those excluding self-consumption and water supply in domestic cement sales during the period during which the amount of cement supply by company is restricted.

(3) The rate of penalty surcharges shall be determined by multiplying the relevant sales by each company by 2/100, taking into account the type of the instant violation, the degree of competition restricting, the intensity of ripple effects, etc.: Provided, That the amount less than a million won shall be reduced.

(B) The plaintiff's assertion

As alleged earlier, since the Plaintiff did not engage in any unfair collaborative act as alleged earlier, the period of violation of the said Act cannot be recognized. In addition, in the relevant sales that serve as the basis for the calculation of penalty surcharges, the transaction amount between the Aju industry and the U.S.-S.-S.-S.-in spite of the Plaintiff’s total sales amount, based on the Plaintiff’s entire domestic cement sales amount is an unreasonable expansion of the scope of the relevant products. In addition, considering the overall circumstances, such as the degree of the Plaintiff’s participation in the collaborative act, the instant penalty surcharge is excessively excessive and excessively against the principle of proportionality, and the Defendant abused

(C) the board:

(1) First, the relevant sales that serve as the basis for calculating penalty surcharges shall be deemed as follows.

"Sales of related goods", which is the basis of the calculation of a penalty surcharge in an unfair collaborative act, is the sales of goods affected by the violation in the relevant market where the collaborative act occurred, that is, the sales of goods affected by the violation. On the other hand, a violation in an unfair collaborative act is agreed to engage in an act of unfairly restricting competition. Therefore, the scope of goods affected by the violation should be determined in consideration of the contents of the agreement and the effect

However, since slot powder powder and slot cement are actually sold as a substitute and complementary material of ordinary cement, the above products are competitive products and products affected by unfair collaborative acts. In addition, the contents of the agreement do not simply restrict the amount of ordinary cement supply to ready-mixed companies, but it was an effective means to restrict the amount of ordinary cement supply to ready-mixed companies related to slot powder business in order to interfere with the competitor's business, and as seen earlier, the pertinent collaborative act gives up the main industry and basic materials of the cement industry, or gives substantial restriction on the competition in cement markets including slot powder only to self-consumption. Therefore, considering the relationship between slot powder and cement, details of agreement, and competition-competitive effects, it is reasonable to view the "relevant product market" of this case as a cement market including slot powder.

In addition, since the sales amount of the relevant goods does not mean only the sales amount of cement products of the enterprisers participating in the collaborative act, and sales amount to the enterprisers subject to the collaborative act, the relevant sales amount cannot be limited due to the sales amount of the instant company for the Asian industry or the related goods.

In addition, all of the instant companies are competing businesses with the nation as sales networks, and the effect of restricting competition caused by collaborative acts has an impact on the nation, so the "relevant regional market" is deemed to be the entire domestic cement market across the nation.

On the other hand, it is not necessary to exclude packaging cement from the scope of related products because it is a difference between whether packaging cement and cement are sold in the form of a concrete, whether they are sold in the form of a package, and the cost structure is the same as the same except for the additional cost required for packing. On the other hand, if cement price increases due to the restriction on competition in cement market due to the restriction on the market entry or business activities of slurging operators, it is restricted to the competition in cement market.

Therefore, the plaintiff's assertion on the amount of sales, which is the basis of calculation of penalty surcharge, is without merit.

(2) Next, we examine the timing and completion period of the violation of law.

First of all, as seen earlier, the time and termination period of the violation related to the Aju Industry are clear. As such, the Defendant did not err by calculating the penalty surcharge for each company that committed each violation (limited to the supply restriction) and regarding the Plaintiff from July 15, 2002 to July 26, 2002, and from October 20 to November 30, 2002 to November 30, 2002.

Next, it is considered as to the violation related to basic materials.

In order to presume a collaborative act under Article 19(5) of the Act, the following requirements are met: (a) the restriction on competition should be determined by comprehensively taking into account the market share of the enterpriser engaged in the act (in this case, interference with business) and the characteristics and current status of the market in which the enterpriser produces and sells, and (b) the starting date of the act of violation should be deemed as the time satisfying all the above two requirements. However, it is reasonable to deem that only Raz started the act of restricting the supply of so-called so-called "the supply of so-called Raz" on March 17, 2003 and the market share of Raz was 10.2% or 13.2% (see the above e.g., Table 5), and the remaining companies were 10 months or more prior to the conclusion of the restriction on competition. In light of the above, it is reasonable to deem that the above restriction on the supply of 3rd or more companies prior to the commencement of the restriction on competition.

Furthermore, this paper examines the termination period of an offense. The termination period of a collaborative act is, in principle, when an agreement on interference with business, such as restriction on supply, has been reversed or returned to the previous state (see attached Form 3), and the fact that the basic materials were prepared and delivered to the two associations on May 28, 2003, which contain the following contents: "the waiver of the development plan for Incheon North Korea Port" and "the scope of supply of the basic materials is limited to self-consumption" and "the scope of supply of the products for the slurg powder powder powder", are limited to self-consumption. And the two presidents of the two associations immediately after the completion of each written evidence No. 9 after giving notice to the company of the above fact, after considering the overall purport of oral argument, after consultation with the company of this case, the two presidents of the two associations should be deemed to have been completely resolved as a result of the agreement with the company of this case, and after the completion of the agreement, the company's remaining companies other than business shall be deemed to have been dismissed on May 29, 20, 2000.

Nevertheless, under the premise that the above agreement of the collaborative act is not reversed and still continued, the defendant made an error in the fact-finding that served as the basis of the imposition of the penalty surcharge, and thus, it is illegal because the order of the payment of the penalty surcharge has exceeded and abused discretion.

Therefore, the part corresponding to the above period of violation among the penalty surcharge payment order of this case shall be revoked as it is unlawful. The records of this case alone are insufficient to calculate the amount of penalty surcharge to be revoked as above among the penalty surcharge payment order of this case, which is executed by the defendant against the plaintiff. Thus, the above penalty surcharge payment order of this case shall be revoked in its entirety.

4. Conclusion

Therefore, the part of the defendant's disposition of this case regarding the corrective order (order of suspension of act and order of publication) is legitimate and is unlawful. The plaintiff's claim seeking the revocation of the whole disposition of this case is accepted only for the above part of the penalty surcharge, and the remaining part is dismissed as it is without merit. It is decided

Judges' Profit-based (Presiding Judge)