[2] The method of determining the truth of the statement of fact and whether the judgment belongs to the discretionary power of the fact-finding court unless it goes beyond the bounds of the principle of free evaluation of evidence (affirmative)

1. As to the allegation in the grounds of appeal as to the reported price collaborative act

A. As to the establishment of a collaborative act with reported price (Ground of appeal No. 1)

1) Article 19(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) prohibits “agreement on an act that unfairly restricts competition” includes not only explicit agreement, but also implied agreement. Here, the essence of the agreement lies in the communication between two or more enterprisers. As such, it cannot be deemed that there was an agreement as a matter of course on the ground that there exists an external form consistent with the act listed in each subparagraph of the above provision exists, but it can be deemed that there was an agreement if there is a proof of circumstance to recognize a reciprocality of communication among enterprisers (see, e.g., Supreme Court Decision 2012Du17421, Nov. 28, 2013). Meanwhile, the court held that the fact-finding is not true in accordance with logical and empirical rules based on the ideology of social justice and equity through a free trial by taking into account the overall purport of pleadings and the result of examination of evidence (Article 8(2) of the Administrative Litigation Act; Article 202 of the Civil Procedure Act). The judgment of the court below is within the scope of free evaluation of evidence 30136.

2) According to the reasoning of the lower judgment and the record, the following facts and relevant circumstances can be verified.

① On December 31, 2010, the Minister of Agriculture and Forestry determined the appropriateness of the reported price and approved by the Ministry of Agriculture and Forestry until December 31, 201, on the following grounds: (a) the Plaintiff and International Joint Machinery Industry Cooperatives (hereinafter referred to as “Co., Ltd.” in the case of a Co., Ltd.; (b) the name of the corporation; (c) the Daedong Industry, LSS and LSSS and LSM (hereinafter referred to as “instant Co., Ltd.”) reported the price of agricultural machinery to the Korea Agricultural Machinery Industry Cooperative or to the Ministry of Agriculture and Forestry in each quarter ( January, April, July, July, and October). However, from January 1, 201, the Ministry of Agriculture and Forestry did not follow

② By December 31, 2010, even if the manufacturing of the agricultural machinery in this case submitted a declaration price, it was not approved by the Ministry of Agriculture and Forestry, and it was also approved after re-reporting the price. However, the Ministry of Agriculture and Forestry considered the approval as to whether the rate of increase in the price of the agricultural machinery in this case is within the rate of increase in the previous year’s price, and within such scope, the manufacturing of the agricultural machinery in this case could autonomously determine the price.

③ Officers and employees of the instant manufacturers of agricultural machinery frequently held meetings to consult on pending issues relating to agricultural machinery. In particular, around the time of each quarterly dutiable value return, they consulted on whether or not the reported value by the executives in charge of the instant business increases in the quarter, and exchanged information on the increase in the number, etc., through meetings in which the executives in charge of the instant agricultural machinery attend, and each other consulted on or exchanged specific reported value through wire liaison and exchange information on the basis of such consultation and information exchange. In addition, each of the instant manufacturers determined the reported value of each company based on such consultation and information exchange. Some of the manufacturers of agricultural machinery of this case recognize that these series of activities are by agreement among the manufacturers of the agricultural machinery of this case.

④ Since the price reported by the manufacturers of the instant agricultural machinery is the basis for calculating the sales price of agencies and the National Agricultural Cooperative Federation (hereinafter “CF”), there was sufficient motive or incentive for the manufacturers of the instant agricultural machinery to jointly determine the reported price in order to increase sales profit by avoiding price competition.

⑤ From among the agricultural machinery manufactured and sold by manufacturers of the instant agricultural machinery, the reported price of the models with a similar quantity within the same type of machine appears to have been replaced by a change in price, and the same shape as the reported price of the agricultural machinery and the changes in the prices of the agricultural machinery can be seen as a result of the implementation of the agreement prior to the implementation of the agreement. Meanwhile, even though there are differences in the trends in the price increase in the products of the agricultural machinery and equipment of this case or the trends in the average increase in the prices of the entire agricultural machinery of this case, the instant agricultural machinery and equipment of this case may not be deemed to have been carried out by agreement solely on the basis that there are some differences in contents.

6. The market share of the domestic agricultural machinery market in 2009 and 2010 is no significant change. The sum of market share of the Plaintiff and the International Comprehensive Machinery, Large Industries, and LSMT in 2009 and 2010 is about 67%, and if the aggregate of market share is based on the results of the purchase of the agricultural industry in 201, it is about 89%, about 66%, and about 75%, the compacter is about 200.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal principles and the aforementioned various circumstances, the lower court’s determination that the instant manufacturers of agricultural machinery committed collaborative acts with respect to the reported price equivalent to the price under Article 19(1)1 of the Fair Trade Act is sufficiently acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the establishment of unfair collaborative acts and by misapprehending the legal doctrine regarding the admission of unfair collaborative acts, or by omitting judgment, contrary to what is alleged

B. As to restrictions on competition of reported price collaborative acts (ground of appeal No. 2)

The lower court acknowledged the facts as indicated in its reasoning, such as: (a) the act of collaborative acts of manufacturers of agricultural machinery of this case with the aim of reducing competition on the price; (b) the effect of restricting competition and damage to consumers; (c) the act of causing damage to consumers, which is difficult to expect the effect of efficiency increase; (d) the reported price, as long as competition is restricted in the determination of the reported price as it has a significant effect on the actual selling price for consumers; (b) so long as competition is restricted in the determination of the reported price, it cannot be said that it does not restrict competition even if it actually sold; and (c) the collaborative act continues for a long period; and (d) the fact that the market share of the

Examining the reasoning of the lower judgment in light of the relevant legal principles and duly admitted evidence, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, did not err by misapprehending the legal doctrine on competition limitation of unfair

2. As to the allegation in the grounds of appeal on the collaborative act of the grant rate (Ground of appeal No. 3)

The lower court acknowledged the following circumstances in its reasoning: (a) in the course of consultation on the manufacturing of the instant agricultural machinery and the rate of incentive with the agricultural cooperative’s joint receiver, the NAC sent documents containing the proposal on the rate of incentive; or (b) held a business council by the researchers of the agricultural machinery to participate in the business council; (c) on the other hand, the research of the agricultural machinery and equipment of this case was merely intended to gather opinions in advance about the agricultural cooperative; (d) there was a separate agreement on the rate of incentive through opening a separate meeting or communicating with each other; (e) it is difficult to deem that there was no unjust enrichment or increased consumer welfare by the research of the agricultural machinery of this case as a collaborative act; and (e) it is difficult to regard the collaborative act rate as the minimum necessary measures for the research of the agricultural machinery and equipment of this case to the agricultural cooperative; and (e) determined that the collaborative act on the rate of incentive constitutes an agreement to jointly determine the price under Article 19(1)1 of the Fair Trade Act.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court’s determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules,

3. Regarding a penalty surcharge payment order (Ground of appeal No. 4)

The court below acknowledged the following circumstances: (a) the manufacturer of the agricultural machinery of this case appears to have determined the price of the previous model based on the previous model price when withdrawing a new model; (b) the new model price prior to the dutiable value return is deemed to be included in the subject matter of consultation on the reported price; and (c) the new model price is not completely different from the existing product; (d) the Plaintiff is bound to be affected by the price of the already existing product because it is not entirely different from the existing product; (e) the Plaintiff was unable to obtain unjust enrichment through the reported price collaborative act and the incentive rate; or (e) it is difficult to deem that there was no damage to consumers due to each of the above collaborative acts; (b) the Defendant applied the imposition standard rate of 2% by deeming that each of the above collaborative acts was serious; and (c) the Defendant calculated the final penalty surcharge after taking into account all the circumstances, and subsequently, determined that there was no

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on deviation and abuse of discretion in the imposition of penalty surcharges

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 Kim Shin (Presiding Justice)