[2] In a case where Gap life insurance company exchanged information about future scheduled interest rates, announced interest rates, etc. with 15 insurance companies including Eul life insurance company from 2001 to 2006, and thereby determined their respective interest rates, the Fair Trade Commission issued a corrective order and imposition of penalty surcharge against Gap company, the case affirming the judgment below that the above disposition was unlawful on the ground that there is insufficient evidence to acknowledge that there was an agreement among the 16 life insurance companies including Gap company to jointly determine the scheduled interest rates, etc.

[2] In a case where Gap life insurance company exchanged information about future scheduled interest rates, announced interest rates, etc. with 15 insurance companies including Eul life insurance company from 2001 to 2006, and thereby set their respective interest rates, the Fair Trade Commission ordered Gap company to take corrective measures and impose penalty surcharges on Gap company, the case affirming the judgment below holding that the above disposition was unlawful on the ground that it is insufficient to acknowledge that there was an agreement among 16 life insurance companies including Gap company to jointly determine the scheduled interest rates, etc. or that there was an exchange of information among them through the exchange of information.

1. As to the establishment of an unfair collaborative act

A. “Unfair collaborative act” prohibited under Article 19(1) of the Monopoly Regulation and Fair Trade Act refers to an agreement on an act that unfairly restricts competition, and at this time, “agreement” includes not only explicit agreement but also implied agreement (see Supreme Court Decision 2001Du1239, Feb. 28, 2003, etc.). However, since it is the essence of the communication between two or more enterprisers, it cannot be deemed that there was an external agreement, as a matter of course, because there exists an appearance consistent with the “unfair collaborative act” listed in each subparagraph of the above provision, and there should be proof of circumstances to recognize the reciprocity of communication between enterprisers, and the burden of proof on such agreement exists in the Defendant ordering corrective measures, etc. on the ground of such agreement (see Supreme Court Decision 2012Du17421, Nov. 28, 2013, etc.).

In addition, in cases where competition enterprisers exchange information on major competitive factors, such as price, etc., the exchange of such information may serve as a means to facilitate or facilitate collusion by removing uncertainty on the decision-making of price, etc. Thus, it may serve as a valuable material to recognize the reciprocity of communication among the enterprisers. However, even so, it cannot be readily concluded that there exists an agreement on an act of unfairly restricting competition solely based on the fact of exchanging the information cannot be determined by comprehensively taking into account all the circumstances, such as the structure and characteristics of the relevant market, the nature and contents of the exchanged information, the subject and timing of the exchange, the timing and method of the exchange of the information, the purpose and intent of the exchange of the information, the degree of consistency or difference between the enterprisers, such as price and output, etc. after the exchange of the information, the process and details of the exchange of the information, and other factors such as the impact on

B. (1) Unless it is recognized that the 16 life insurance companies, including the Plaintiff, agreed to jointly determine, maintain, or change the price from 2001 to 2006, the lower court determined that the Defendant’s corrective order and imposition of the penalty surcharge (hereinafter “instant disposition”) on the premise that the Plaintiff committed an unfair collaborative act with the 15 life insurance companies, on the ground that there was an exchange of information on future expected interest rates and disclosure interest rates, etc., cannot be deemed as an unfair collaborative act merely because the 16 life insurance companies, including the Plaintiff, etc. had committed an unfair collaborative act; and (2) there is insufficient evidence to support that there was an agreement among them to jointly determine the expected interest rates, etc. through the exchange of information from 2001 to 206.

In light of the aforementioned legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the establishment of unfair collaborative acts, such as exchange of information and collaborative acts, relationship between the act in the same line and the act of collaborative acts, ratification of implied collaborative acts, etc., and the subject of unfair collaborative acts, or in violation

2. As to whether the prescription period for the disposition has expired

The lower court determined that the instant disposition against “the first act” was unlawful on the ground that the instant disposition on December 15, 201, on the ground that: (a) the first act constitutes a single collaborative act, even if the second act constitutes an unfair collaborative act; (b) the first act does not constitute an unfair collaborative act; (c) on the ground that the Defendant’s second act was not constituted an unfair collaborative act; and (d) the first act was already completed at a specified time in 2001 at a specified period of the second act; and (e) the instant disposition on December 15, 201, which was five years after the date of the second act; and (e) the instant disposition on “the first act” took place after the lapse of the prescription period.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, such judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the number and termination period of collaborative acts, and the prescription for disposal

3. As to the identity of basic facts and the scope of the court’s trial

The lower court determined that the instant disposition cannot be deemed legitimate on the ground that the Plaintiff and Samsung Life Insurance Co., Ltd. and Samsung Life Insurance Co., Ltd., the market share of which was one market share, determined the expected interest rate, etc. based on the practices of determining information exchange and expected interest rate, etc. based on the evidence in its holding, there is room to view that the Plaintiff and Samsung Life Insurance Co., Ltd., the Plaintiff did not have an implied understanding to determine the expected interest rate, etc. at a higher level than that of the Plaintiff, but it did not differ between the two business entities, on the ground that the grounds for the instant disposition and unfair collaborative act differ in terms of the participants, contents, method of agreement, timing of agreement and termination of agreement

Examining the reasoning of the judgment of the court below in light of the relevant legal principles and records, it is somewhat inappropriate to view that the above facts in the judgment of the court below are different from those in the above "explic understanding" and the basic facts in the disposition grounds of this case. However, even if the basic facts are identical between the two, where multiple relevant facts are altered, such as the timing of collaborative act, completion period, contents and method of agreement, the number of participants, etc., it is difficult to view that simple correction of the disposition grounds is limited, and in such a case, there is a concern that substantial disadvantage may be inflicted on the exercise of the party's right to defense. Therefore, the court cannot recognize other facts, without any addition or modification of the disposition grounds, that have been changed ex officio by the court as the ground for disposition. Accordingly, the court below's conclusion that the above facts concerning the "explic understanding" cannot be deemed the legitimate ground for disposition of this case is justifiable, and contrary

4. 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.

Justices Yang Chang-soo (Presiding Justice)