The part of the penalty surcharge order shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

1. Article 19(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) prohibits “agreement on acts that unfairly restrict competition”. The agreement includes not only explicit agreement but also implied agreement.

In this context, the essence of the agreement lies in the communication between two or more enterprisers. Thus, it cannot be acknowledged that there was an agreement as a matter of course on the ground that there was an appearance consistent with the act listed in any of the subparagraphs of the above provision, and there is a proof of the circumstances to recognize the reciprocity of the communication between the enterprisers. The burden of proof on such agreement is against the Defendant ordering corrective measures, etc.

(1) Article 8(2) of the Administrative Litigation Act and Article 202 of the Civil Procedure Act are applicable to the court of fact-finding, unless the aforementioned determination goes beyond the bounds of the principle of free evaluation of evidence, and thus, is subject to the exclusive jurisdiction of the court of fact-finding, unless it exceeds the bounds of the principle of free evaluation of evidence (see, e.g., Supreme Court Decision 201Du1741, Nov. 28, 2013).

2. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following circumstances.

A correction order and penalty surcharge shall be imposed on the ground that manufacturers and sellers of avian influenza (hereinafter referred to as “self-definites”) including the Plaintiff agree to jointly determine the supply price and the supply quantity of the self-definites purchased each year from 2005 to 2009 by the Korea Centers for Disease Control and Prevention, and accordingly, conduct unfair collaborative acts by concluding government procurement contracts.