[2] The method of determining the normal discount rate for the issuance of commercial papers purchased by the support entity in determining the unfair support act

[3] The case holding that the discount rate which the Fair Trade Commission considered as the basis for determining whether the act of improper assistance in the purchase of commercial papers was conducted cannot be deemed as the normal discount rate for the commercial papers

[2] In determining the act of improper assistance, in case where there are cases where an independent person, at the same time or near the same method, purchased commercial papers issued by an assistant at the time of the purchase of commercial papers issued by an assistant, it shall be deemed that the ordinary discount rate of such commercial papers is the discount rate applied to the transaction at the same time, and where there is no transaction at the same time, it shall be deemed that the transaction at the same time is the discount rate applied to the transaction at the most close to the purchase of such commercial papers, and where there are many trades at the same time or most close to the other party

[3] The case holding that the rate of the minimum discount for the commercial papers issued by a company, which has a credit rating similar to the applicant company, shall not be deemed as the normal discount rate for the commercial papers issued by the applicant company, in light of the fact that the minimum discount rate and the highest discount rate for the commercial papers issued by the company, which had a credit rating similar to the applicant company, are considerably high at the same time and within the credit rating, and that the minimum discount rate and the highest discount rate are not considered when simply averages the minimum discount rate and the highest discount rate, and that there is a concern that the applicant may not be distorted by the discount rate itself, since the size and frequency of the transaction are not considered, etc.

A. As to whether an act constitutes an unfair support act

(1) Purchase portion of corporate bills (No. 1-4 No. 2 of the list of the original judgment of the lower court) issued by Plaintiff KSB Co., Ltd. (hereinafter “Plaintiff KSB”) (hereinafter “SK distribution”), i.e., purchase of corporate bills (No. 1-4 of “the current status of purchase of corporate bills distributed on 1. S.”).

(A) Whether the act was supported

In determining whether a transaction constitutes a significantly favorable condition under Article 23(1)7 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 6043, Dec. 28, 1999; hereinafter “the Act”), not only difference between payment and benefit in return, but also economic benefits, period of provision, frequency of provision, timing of provision, period of provision, economic situation of the recipient at the time of provision of support, etc. shall be determined specifically and individually by comprehensively taking into account the economic situation of the recipient at the time of provision of support, etc. The normal interest rate, which serves as the basis for determining whether payment and benefit in return, are substantially favorable. The normal interest rate, which serves as the basis for determining whether payment and benefit in return, has been substantially favorable in the same or similar situation between the support recipient and the support recipient and the independent financial institution without a special relationship, refers to the interest rate to be applied when a financial transaction has been conducted between the support recipient and the support recipient and the support recipient in the same or similar situation.

According to the records, the plaintiff KS 2 entered into a specified money trust agreement with Han Bank from January 23, 1998 to April 13, 1998, and caused the above Han Bank, a trustee company, to purchase corporate bills stated in attached table 2 of the judgment below (hereinafter "the list of 1. KS 2") 1 to 4. The credit rating at the time of its issuance of the above corporate bills is "A3-," the table of interest rate at the time of its issuance of Samsung Securities Co., Ltd. (hereinafter "TG 2"), the average of the credit rates at the 3.0% discount rates at the 3.0% discount rates at the 3.0% rate at the 3.0% rate at the 3.0% rate at the 3.0% rate at the 3.0% rate at the 3.0% rate at the 3.0% rate at the 3.0% rate at the 3.0% rate at the 3.0% rate at the 1997.

The court below erred in finding the average discount rate under the interest rate table of this case as the normal discount rate of the commercial paper of this case. However, it is just in holding that the purchase of the commercial paper of this case by Plaintiff Stecom constitutes a trade under substantially favorable terms, and there is no error in the misapprehension of legal principles as to the trade under substantially favorable terms.

(B) Whether it is improper

In order to establish an unfair support act under Article 23 (1) 7 of the Act, the support act of the support entity must be conducted unfairly. In determining whether the support act of the support entity against the support entity is improper, the determination shall be made based on whether the support entity is likely to impede fair trade because it impedes competition in the related market of the support entity or causes concentration of economic power (see Supreme Court Decision 2004Du2233, May 13, 2005) by comprehensively taking into account the relationship between the support entity and the support entity, the purpose and intent of the support act, the structure and characteristics of the market to which the support entity belongs, the size and duration of the support entity, the economic benefits and the period of support due to the act of the support, the restriction on competition in the market to which the support entity belongs or the effect of concentration of economic power, etc. (see Supreme Court Decision 2004Du2233, May 13, 200

According to the records, Plaintiff Scom and Scom distribution are affiliates of SK, a large business group, and Plaintiff Scom purchased 50 billion won at the face value issued by Scom distribution on more than four occasions between January 23, 1998 and April 13, 198, under substantially favorable terms. The amount of money for such purchase is KRW 450 million, and Scom distribution was continuously capital potential for three years until 1997. The mobile phone distribution market at the time of the purchase of the instant commercial papers was in a very intense competition. In light of the above facts, the purchase of the instant commercial papers of this case by reducing the financial burden of SK and improving its financial conditions, thereby hindering fair and free competition in the K market.

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the illegality of the act of assistance as otherwise alleged in the ground of appeal.

(2) The part concerning the purchase of corporate bills issued by Plaintiff Scom Construction Co., Ltd. (hereinafter “Plaintiff Scom Construction”)

(A) Whether the act was supported

Where there is a case where an independent person has purchased corporate bills issued by an applicant at the same or close time in the same or similar manner, the normal discount rate of such corporate bills shall be applied to the transaction at the same time, if there is a transaction at the same time, and where there is no transaction at the same time, it shall be deemed the discount rate applied to the transaction at the most adjacent to the purchase of the relevant corporate bills. It shall be reasonable to view that there are many trades at the same time or most adjacent to the purchase of the relevant corporate bills as the weighted average discount rate.

According to the records, the above act of the plaintiff KS 1 was conducted by directly purchasing CPs issued by the plaintiff KS construction over 8 times, such as "the purchase status of CPs" in the list 2.0 to June 30 of the same year, or by depositing 2.5 billion won in the above CP 1, 3, and 5. The above act was conducted between the plaintiff 2 and the non-specially related parties on the same date, and there were 6.0% discount rates for CPs issued by the plaintiff 2.0% above the above 6.0% discount rates for 7.0% below the above 9% below the above 9.0% below the above 9% below the 9.0% below the above 9% below the 9.0% below the above 9% below the 9.0% below the above 9% below the 9.0% below the above 9% below the 9.0% below the above 19.2% below the above 9% below the above 9.0% discount rates for 19.2.3

The court below is just in holding that the weighted average discount rate of the corporate bills issued under conditions similar to one week before and after the issuance date of the corporate bills of this case is erroneous. However, the conclusion that the purchase of the corporate bills of this case constitutes the trade under significantly favorable terms is just, and there is no error in the misapprehension of legal principles as to the trade under remarkably favorable terms.

(B) Whether it is improper

According to the records, the plaintiffs are affiliated companies of SK, and between January 14, 1998 and June 30, 1998, the plaintiffs' purchase of the corporate bills of this case of plaintiff SPK constitutes an act of unfair support which might impede fair and free competition in the relevant market by reducing the financial burden of plaintiff SP construction and favorable competition conditions compared to competitors by improving the financial situation. Thus, the purchase of the corporate bills of this case of plaintiff SPK constitutes an act of unfair support which might impede fair and free competition in the relevant market by purchasing them directly on favorable terms of corporate bills of KRW 30.5 billion or KRW 53.2 billion, and the amount of support resulting therefrom would be KRW 1.5 billion.

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the illegality of the act of assistance as otherwise alleged in the ground of appeal.

(3) The part concerning the purchase of corporate bills (No. 8 through 10 No. 10) issued by Plaintiff EK Construction Co., Ltd. (hereinafter “NF”) among the purchase of corporate bills (No. 3. purchase of corporate bills)

(A) Whether the act was supported

The average interest rate on loans in a commercial bank announced by the Bank of Korea as of the end of each month (this shall be calculated by averaging all of the balance of loans implemented under the party loan contract in a commercial bank as of the end of the relevant month; hereinafter “general ordinary interest rate”) is a temporary short-term loan interest rate based on the party loan contract, and is generally higher than the general loan interest rate, such as the ordinary loan rate on commercial papers. Thus, barring any special circumstance where the individual ordinary interest rate is deemed not lower than the ordinary ordinary interest rate, the ordinary interest rate cannot be applied just on the ground that it is difficult to calculate the individual ordinary interest rate (see Supreme Court Decision 2001Du6197, Apr. 9, 2004).

According to the records, between November 27, 1997 and January 9, 1998, Plaintiff E.S. purchased corporate bills of KRW 8.3 billion issued by Central Finance Co., Ltd. over three occasions. At that time, Jungwon continued to have been in capital impaired for three years, and there was considerable economic situation, such as there was no external loan in addition to raising funds through discount of the above corporate bills, etc. However, it is difficult to conclude that the normal discount rate of corporate bills issued by Jungwon was not lower than the normal discount rate. Thus, there is no other evidence to view otherwise, it is difficult to view the general discount rate as the normal discount rate of corporate bills issued by the Plaintiff K. However, in light of the management status at the time of the above issuance of corporate bills, it is difficult to view that the average discount rate of KRW 20,000 was lower than the “B” grade, and that of KRW 25,00,000 in the above list of corporate bills issued by the Plaintiff E.S. 28.

The court below erred in finding the general interest rate as the normal discount rate of the commercial paper of this case. However, the conclusion that the purchase of the above commercial paper of this case by the plaintiff KS Construction constitutes the trade under substantially favorable terms is just, and there is no error in the misapprehension of legal principles as to the trade under substantially favorable terms.

(B) Whether it is improper

According to the records, the following facts are revealed: (a) Plaintiff SK Construction Co., Ltd. purchased CPs over three occasions between November 27, 1997 and January 9, 1998 under substantially favorable terms for the face value of KRW 8.3 billion of the mid-term issuance; (b) the amount of support resulting therefrom is KRW 130 million; (c) the KN is a company operating the building management service business, and its capital erosion was maintained for three years until 1997; and (d) there was no other external loan except the discount of the corporate bills by Plaintiff SK construction. In light of the above facts, the purchase of corporate bills among Plaintiff SK construction constitutes an unfair support act that could undermine fair and free competition in the relevant market by reducing the financial burden of the KNF and preventing withdrawal from withdrawal.

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the illegality of the act of assistance as otherwise alleged in the ground of appeal.

B. On the penalty surcharge payment order

The lower court revoked all of the orders to pay penalty surcharges to the Plaintiffs, and the Plaintiff asserts in the appellate brief that no appeal was filed against this part, and this part of the grounds of appeal is not separately determined.

2. Judgment on the Defendant’s grounds of appeal

A. As to a significant nature

Whether it is a transaction under substantially favorable conditions under Article 23 (1) 7 of the Act shall be determined on a specific and individual basis by comprehensively taking into account not only the difference between the payment and the consideration, but also economic benefits arising from the scale of the support and the act of the support, the period and frequency of the support, the timing and timing of the support, the economic situation at the time of the support, etc.

According to the records, the plaintiff Stecom had the above Han-il Bank which entered into a specified money trust contract three times in total from April 13, 1998 to July 30 of the same year buy each of the 17.1% or 19.1% of the 5 to the 19.1% of the 7th purchase price of the CPs listed in the table of this case. The defendant, at the normal discount rate of each of the above CPs, the difference between the average discount rate of 1.5% or 3.4% between the above CPs and the above actual discount rate of CPs was 1.5% or 3.4%, and the above CPs were 7% of the average discount rate of 1.7% or 14% of the above CPs issued at the above average discount rate of 1.3% or 14% of the above CPs issued at the above average discount rate of 7% or 194% of the above CPs issued at the above average discount rate of 1.3% or 16% of the above CPs.

Although some parts of the court below's reasoning are inappropriate, the conclusion that the purchase of each of the above corporate bills is difficult to be seen as a transaction under significantly favorable terms is just, and there are no errors in the misapprehension of legal principles as to whether or not the judgment is superior to the judgment, the number of unfair support acts, and the transaction under substantially favorable terms, as otherwise alleged in the

B. On the penalty surcharge payment order

In imposing penalty surcharges on the act of improper assistance, if there is no evidence to calculate the amount of penalty surcharges on the basis of some of the offenses committed by the Defendant, even though one penalty surcharge was imposed on several offenses, the entire order to pay penalty surcharges is to be revoked (see Supreme Court Decision 2001Du2881, Oct. 14, 2004).

According to the records, the defendant ordered payment of one penalty surcharge on the purchase of each corporate paper for Plaintiff Scom and for Plaintiff Scom Construction. It can be known that the defendant ordered payment of one penalty surcharge on the purchase of each corporate paper for Plaintiff Scom Heavy. The defendant did not constitute the act of unfair support, and there is no evidence to calculate the amount of penalty surcharge on the basis of the remainder of the violation except for the purchase of part of the corporate paper for Plaintiff Scomcom, and the purchase of part of the corporate paper for Plaintiff Scom Heavy Heavy. Thus, the above order of payment of penalty surcharge should be revoked in its entirety.

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the scope of revocation of a penalty surcharge order as otherwise alleged in the ground of appeal.

3. Conclusion

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

Justices Park Jae-sik (Presiding Justice)