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한국철도시설공단의 거래상지위남용행위에 대한 건

2005-12-04 | 의결2005-278 | 2005독관2076 | 과징금

Representative Measure Type

Penalty Surcharges

Resolution Number

Resolution 2005-278

Case Number

205 Readings2076

case name

Cases concerning the abuse of trade status by the Korea Rail Network Authority

Date of Resolution

December 05, 2005

Attachment Files

Written Resolution (railroad Facility Authority).hwp

Written Resolution (railroad Facility Authority).Pdf

Persons with serious mind

Korea Rail Network Authority

Jung-dong Daejeon Metropolitan City 452-3 President Park Jong-dong, Jung-dong, Daejeon Metropolitan City

Text

1. The respondent shall not engage in any act of bringing disadvantages to the other party as a result of failing to pay compensation for delay in excess of 60 days during the contract suspension period by unfairly taking advantage of his/her position in trade in the course of performing the contract after the conclusion of the contract;

2. When the inquiree refunds the defect bond and contract bond that have been paid in cash, he/she shall not engage in any act that gives disadvantage to the party in transaction by unfairly adding interest to his/her transaction position;

3. When the inquirer purchases goods and pays the purchase price, he/she shall not react to disadvantage the other party to the transaction by delaying the purchase price and paying the purchase price by unfairly taking advantage of his/her position in his/her trade and not paying the interest for arrears accordingly;

4. The respondent shall unfairly maintain his/her position in trade in a contract for construction works or technical services;

by means of the reduction or exchange of unfair contract price under construction specifications and technical services contracts;

No person shall engage in any act that gives disadvantage to the opposite contractual party by establishing a mandatory provision, the burden of a contractor for a field investigation expenses incurred prior to commencement of works, a disadvantageous dispute resolution clause, etc.

5. Within sixty (60) days from the date of receipt of this corrective order, the respondent shall, within sixty (0) days from the date of receipt of the corrective order, search for or amend the provisions of the Construction Specifications Section Ⅱ.3(b) and Section Ⅱ.3(l) of the Technical Services Contract Section 6 and Section 8 of the Special Conditions, and shall, where amended, consult with the Fair Trade Commission in advance.

6. The respondent shall pay a penalty surcharge to the National Treasury pursuant to the following subparagraphs:

(b) Payment deadline: Within a payment deadline (60 days) specified in a notice for payment of penalty surcharges;

Reasons

1. Basic facts

(a) Eligibility of the inquiree and the current general status of the person;

The core Korea Rail Network Authority, under the Framework Act on Railroad Industry Development, is a person who carries out projects such as the construction and tolerance of railroad facilities, the construction of foreign railroads, inter-Korean connections and the construction of a railroad network for North Asia, and the development, management, and support of technology for railroad facilities under the Framework Act on Railroad Industry Development and is a business operator under Article 2 (1) of the Monopoly Regulation and Fair Trade Act (hereinafter referred

The general status of the inquiree shall be as follows:

In general, the status of the inquiree as provided in Table 1.

(as of the end of 2004, as of 200 million won,

Construction and management of facilities of Si employees, number and railway on January 1, 2004, 1.92, 09115, 188 1, 5621,500 of the total value of the capital on the closing date of the business.

*Replace: Data submitted by the person under question

(b) Market structure and actual conditions;

With respect to construction works, services, delivery, etc. of railroad facilities (railroads, stations, and other buildings and facilities for railroad operation), high-speed railroad construction projects have been implemented by the Korea High-Speed Railroad Construction Corporation, and general railroads and wide-area railroad construction projects by the Korea High-speed Railroad Construction Corporation, respectively.

From January 1, 2004, the Korea Rail Network Authority shall exclusively carry out all railroad and track facilities works and services related to high-speed railroads, general railroads and metropolitan railroad construction projects, goods projects, and goods projects, and the current status of construction works ordered by the core related to railroad facilities shall be as shown in Table 2.

Table 2. Current status of orders issued by railroad facilities-related corporations

(unit: million won)

The total amount of construction work, total service, total amount of 2021,901,92017,3524,0172032,632,359128,58620,5402041,702,5321,06031,92

*Replace: Data submitted by the person under question

2. Unpaid compensation due to the suspension of construction works:

The respondent shall not be a newr of the Southern Power Station of the Republic of Korea on May 11, 2002, with respect to the construction of the Republic of Korea on May 11, 200 and two other companies.

In the process of implementing other construction contracts (contract period: between May 18, 2002 and August 14, 2004; contract amount: 6,969,170 won): the construction has been suspended for a total of 136 days from March 22, 2004 to August 4, 2004 as the opening of the sections in the second phase of Jeonra Line was delayed.

In this regard, the respondent has failed to pay the delayed compensation for the excess of 60 days (76 days) of the period of suspension at the time of the suspension of construction pursuant to Article 47(4) of the General Conditions of the Construction Contract of the respondent, but the late payment of the delayed compensation for the amount of 3,879,000 won until the time of the payment for the completion of construction.

In addition, in the process of implementing the contract for the construction of the electric power facilities (the contract period: April 26 through May 31, 2001; contract amount: 1,074,410,00 won) with the (in the case of the state-owned electric power plant, the respondent suspended the construction for a total period of 295 days from May 1, 2003 to February 19, 204.

Like the same, the respondent has not paid the delayed compensation amounting to 60 days in excess of the fixed period (235 days) at the time of the suspension of construction pursuant to Article 47(4) of the General Conditions for the Construction Contract of the respondent, but did not pay the delayed compensation amounting to 1,266,000 won until the time of payment for the completion of construction, which is the due date.

Details of delayed compensation following the suspension of construction work under Table 3.

(unit:,000 won)

The contract price of the contracting party (amount in excess of 60 days) contract period (amount in excess) suspension days (amount in excess of 60 days), suspension reasons, compensation for delay of the contract, new construction and other construction works (in excess of 293,910) '2. 18 through 04.8.14 ("04. 22 and 4.04.8.4) 136 (76) 1,074, 410 (amount in excess of 91, 340 and 780) '2. 1,05. 26 and 1,05. 5. 265 (26) '25. '1,194' '1. 18' '04. 14. 14. 26 and 1965' '25. 165' '26. 15. 15. 265' '1. '

* Delay compensation = Amount of remaining contract 】 Interest rate increased by the monthly loan interest rate of general funds published by the Bank of Korea 】 Number of days suspended exceeding 60 days ± 365

B. Determination of illegality

(1) Whether the transaction status is established or not

The respondent is a business operator exclusively carrying out railroad facility construction projects in the Republic of Korea and continuously ordering construction of a new railroad station and railroad-related facility works for his/her business operation, and the counterpart is recognized as having a trade position to the other party in consideration of the fact that it is necessary to maintain a smooth relationship with the respondent in order to participate in new construction of a steel station and railroad-related facility works continuously ordered by the inquiree as a specialized company for construction and electrical construction, and that it is difficult for the inquiree to refuse the request or presentation of the inquiree and even if his/her disadvantage arises, it is difficult for the inquiree to actively demand correction to the inquiree.

(2) Determination of illegality

According to Article 47 (4) of the General Conditions of the Contract for the Construction Contract of the respondent, "if the period of suspension of construction for any reason attributable to the ordering agency exceeds 60 days, the ordering agency shall pay to the contractor the amount calculated by multiplying the remaining period by the general loan interest rate of commercial banks for each day exceeding the remaining amount of the contract by the completion price per day," however, the respondent's failure to pay the delayed compensation for the excess amount of 60 days due to the suspension of construction, unlike the contract clause, is judged to be an act of unfairly taking advantage of his trading position to give disadvantage to the other party.

3. An act of not paying interest on warranty bond or contract bond;

In entering into a contract for the purchase of PC timber for high-speed railroads with four companies, such as dry industry, the other party to the transaction from March 2004 to April 2005, and returning defect bond and contract bond that have been paid in cash due to the expiration of the warranty period and the contract guarantee period, the respondent's own standards, in performing the contract.

In addition to interest, as seen below, the following table 4 shall apply:

There is a fact that 22,631,000 won has not been paid by returning interest without interest.

Details of payment of interest on the defect bond and contract bond as referred to in Table 4.

(unit:,000 won)

The 1248, 0748, 0748, 0745, 000 (ju) of the 298.12.3.12.2.3.298.12.3.23, 933, 933, 529.7.2142, 4114, 392"9.4.284, 8284, 82184, 82184, 072, 072, as the 1248.3.12.3.23, 933, 933, 933, 529, 529.4.3636.3616.36.63636.6365 Dogwon 14.24.26.63636.265 Dogwon

* Application of interest rate 2% in accordance with the core self-standard

B. Determination of illegality

(1) Whether the transaction status is established or not

In light of the fact that the core is a business operator exclusively carrying out railroad facility construction projects in the Republic of Korea, and continuously places an order for railroad, history, and railroad-related installation works for his/her business operation, and the counterpart is recognized as necessary to maintain a smooth relationship with the core in order for the core to participate in the railroad facility construction works continuously ordered by the core as a specialized construction business entity, and thus, it is practically difficult to refuse the core demand or presentation, and his/her disadvantage is difficult to demand the core to actively correct it to the core.

(2) Determination of illegality

The respondent shall apply mutatis mutandis the State Contracts Act to matters not provided for in the provisions of the Corporation contract, and the cash deposit under Article 53 of the Enforcement Rule of the Act shall be received by the Government in accordance with the Rules on the Handling of Government Deposits.

A defect in the record, and on or after December 1997, through an internal “examination of the payment of interest on the stored money”

In spite of the decision to pay interest of 2% per annum on the deposit and contract deposit, the failure to pay it to the above-mentioned transaction room is considered to be an act of giving disadvantage to the other party by unfairly taking advantage of his trade position.

4. The act of failing to pay interest for delay following the delayed payment of purchase price of goods:

The respondent shall enter into a supply contract with Samp case on October 1, 2004 (Co., Ltd.) and five kinds of pots (contract period: 2004.

10.1 through December 29, 2004; the contract amount: 1,623,860,00 won) shall be concluded; and October 14, 2004; and

11. 22. 4 sets were supplied in installments, respectively, and on October 30, 2004 from Twits case; and

11. In spite of a claim for the purchase of goods on 29. 29., on the grounds that the budget related to the purchase during the quarter is divided into the head office of the finance headquarters and the part of the metropolitan area, the following facts are found to have not paid 907,000 won for the overdue interest pursuant to the provisions of Articles 22 and 23 of the General Conditions on the Purchase of Goods, as shown in Table 5:

The current status of delayed payment of the price of goods under Table 5.

(unit: 1,000 won, including value-added tax)

The details of delayed payment of the contract price under the name of the contracting party, the date of the other party's request for the amount of the contract price, the amount of the claim amount, the amount of the final document supplement (Submission of Document) and the date of payment delay, the due date, the number of delayed days, the amount of interest delay, shall be Oct. 32, 032, 650 "04.11.26, Nov. 26, 2004". 907

* The interest rate shall apply 16.6%, the average interest rate for the general loan of five commercial banks.

B. Determination of illegality

(1) Whether the transaction status is established or not

In relation to the quarterly purchase, the respondent has a demand monopoly in most part of the domestic order quantity.

On the other hand, while the other party is a businessman in a position, the design and manufacture of tramway products and the construction of tramway facilities.

Considering that it is recognized that it is necessary to maintain a smooth relationship with the core in order for the core to participate in the quarterly purchase supply for which the core is continuously ordered, and that it is difficult for the core to refuse the demand or presentation of the core and to demand correction to the core even if there is any disadvantage to the core, it is difficult for the core to actively demand the respondent.

(2) Determination of illegality

According to Article 22(2) of the General Conditions for Purchasing Goods of the respondent, "the person in charge of a contract shall pay the unpaid amount within 14 days from the date on which the request is received," and Article 23(1) provides that "if the payment is not made by the payment deadline, the amount calculated by multiplying the unpaid amount by the overdue interest rate applied at the time of withdrawal from a financial institution to the general fund of the financial institution shall be paid as interest on the number of days from the day following the payment deadline until the date on which the payment deadline is made," but the respondent fails to pay 90,000 won for the quarterly period on the ground that the budget related to the purchase during the quarter is divided into the Treasury and the Seoul Metropolitan area Headquarters, the latter does not pay the quarterly period for the payment of the quarterly period on the ground that the budget related to the purchase is divided into the Seoul Metropolitan

5. Establishment of unfair trade terms and conditions;

When concluding a contract with 71 business entities, including two industry development, from January 2004 to May 2005, the respondent established the terms and conditions of transaction that allow the other party to bear the minor cost to be modified in the construction specifications and the conditions of transaction that can be unilaterally reduced or recovered in the event there is a defect in the determination of the contract amount or a cause to reduce the contract amount occurs, when there is a defect in the determination of the contract amount or there is a reason to reduce the contract amount.

Terms and conditions of the relevant transaction: Construction specifications II.3

(b) Before the commencement of the construction work, the contractor shall thoroughly investigate all the matters related to the construction work, including on-site conditions and geological conditions, and shall take complete measures to address the anticipated problems during the construction work, and minor expenses, etc. to be used therefor shall be borne by the contractor.

(l) If it is found after the conclusion of a contract that there is any defect or error in the determination of the estimated price or contract amount, or there is any other reason to reduce the contract amount, the contractor may reduce or recover the amount in question from the original contract amount, and the contractor may not raise an objection against it even if the other payment to be paid to the contractor is deducted after the termination of the contract, and if there is no such payment, the contractor shall pay it to the demanding administrative agency.

In addition, while entering into a technical reverse contract with 340 business entities, including the presidential traditional (main) from January 2004 to May 2005, the respondent set up a transaction agreement to reduce or recover the contract amount unilaterally when there is a defect in the determination of the transaction conditions and the contract amount as determined by the competent court at the time of the occurrence of dispute with the other party to the technical service contract conditions, or when there is a reason to reduce the contract amount, or when there is a reason to reduce the contract amount.

Terms and Conditions of the relevant Terms and Conditions: Article 6 (Dispute Settlement) of the Technical Services Contract and Special Conditions

3. Notwithstanding the good faith efforts of the parties, if the resolution under paragraph (2) is not achieved, the parties to the contract shall settle the dispute through a lawsuit with the Daejeon District Court. In this case, no objection may be raised against the jurisdiction over the lawsuit filed by the Daejeon District Court in connection with this contract.

Contents of the relevant terms and conditions of transaction: Article 8 of the Special Conditions of the Technical Services Contract (Reduction or Recovery of Contract Amount)

(1) If a cause for reduction or redemption of the contract amount occurs as a result of a self-audit or external audit conducted by the Service or an external audit after the determination of the budget amount or contract amount has been discovered that defects or errors have occurred after the conclusion of the contract, the person in charge of the contract may reduce or recover the contract amount from the initial contract amount. In such cases, the person

(2) Where any ground for recovery arises pursuant to paragraph (1) after a contract is concluded, the other party to the contract.

The other payment may be deducted from the other payment, and if there is no other payment, the other party to the contract shall pay it to the Corporation.

B. Determination of illegality

(1) Whether the transaction status is established or not

Since the respondent has an exclusive status in the field of railroad construction and facility management, it is difficult for the business operator who entered into a contract or service contract with the respondent to secure alternative trading lines in the related field as well as the business operator who entered into a contract or service contract with the respondent in relation to this case, considering the fact that it is practically difficult to refuse the request or presentation conditions of the respondent in the transaction process in order to maintain a continuous transaction relationship with the respondent, and even if his disadvantage arises, it is difficult for the respondent to actively demand correction to the respondent.

(2) Determination of illegality

If there is a defect in the determination of the contract price under the construction specifications and technical service contract terms or in the event of the occurrence of a reason to reduce the contract amount, it is determined that the unilateral reduction of the contract price or to recover the contract amount has established the terms of transaction to be disadvantageous to the other party by using his/her position in his/her trade, considering the following points:

First, in light of the fact that the contracting parties should faithfully perform the contract concluded under their own responsibility on an equal footing in accordance with the principle of trust and good faith, unless there occurs any cause for fraud, deception, or rescission, the terms of transaction so established have no justifiable reason to have the other party liable to the other party, and even if there is a cause attributable only to the accused, the contract amount can be reduced or recovered unilaterally by the other party.

Second, the respondent shall take into account the material cost, personnel cost, etc. in the construction and services

Since the successful bidder determines a successful bidder by a negotiated contract or by a competitive bidding method based on the contract amount submitted by the participant after the decision and announcement, considering the fact that the participant complies with the bidding under the condition that the respondent would have determined and offered a high reserve price, the terms and conditions set by the respondent will be trusted the terms and conditions presented by the respondent and transferred to the party to the contract who performed the tender and the service, by reliance on the conditions presented by the respondent due to mistake, error, etc. in the decision of the contract amount;

Third, it makes unstable the position of a long-term contracting party so that it can be reduced or recovered unilaterally on account of a mistake, error, etc. in the contract price decision;

In addition, establishing the terms of transaction that requires the other party to the transaction to bear the minor expenses incurred in devising the countermeasures against the potential problems that will be modified in the construction specifications, and establishing the terms of transaction with the competent court at the time of the occurrence of a dispute with the other party to the technical service contract and the location of the other party to the contract, considering the following points, it is judged that the party to the transaction has set the disadvantageous terms of transaction by unfairly taking advantage of his/her future status.

First, even if the cost involved in devising countermeasures for the potential problems to be changed in the course of execution is minor, it makes the opposite contractual party bear abrupt burden without specific and objective criteria;

Second, in the event of a dispute with the other party to the transaction, it is likely to cause inconvenience to the other party to the transaction by prescribing the competent court as the location of the person under whose jurisdiction the dispute occurred;

6. Imposition of penalty surcharges;

(a) Determination on imposition of penalty surcharges;

2. A. The acts of the respondent and the 4. A. The acts of the respondent and the 4. The respondent's unjust enrichment

The penalty surcharge shall be imposed in accordance with the provisions of Articles 24-2, 55-3, 9, and 61(1) of the Act, since it falls under the case of obtaining the unpaid interest, the penalty surcharge shall be imposed in accordance with the provisions of Articles 24-2, 55-3, and 61(1) of the Enforcement Decree of the same Act.

(b) Application of standards for calculating penalty surcharges;

The Fair Trade Commission’s notice of the detailed criteria for the imposition of penalty surcharges (Notice No. 2004-7. hereinafter “Public Notice of the Fair Trade Commission”) shall apply to the acts of February 1, 2002 and the acts of April 1, 2004, which were conducted since April 1, 2004, as a result of the acts of April 1, 2004.

(c)based on the calculation of penalty surcharges;

The sales related to the acts of February 1, 200 and the acts of April 1, 200, which are subject to penalty surcharges, among the violations of the law by the accused, shall be based on the contract amount under the provisions of subparagraph 2, c. 2, of the Notice of New Penalty Surcharges.

(d) Calculation of penalty surcharges;

(1) Payment of the basic penalty surcharge upon the suspension of construction (A)

The offense of this case by the inquiree constitutes an unfair trade practice, and thus, constitutes a serious violation. Therefore, according to the provisions of subparagraph (a) of January 1, 4, 200, KRW 32,174,00 shall be calculated by multiplying the contract amount by 0.4% of the standard rate for imposition by the degree of seriousness of the offense, by the standard rate of imposition by the degree of gravity.

(b) Calculation of the mandatory adjustment penalty surcharge

The mandatory adjustment penalty surcharge is 32,174,00 won on the ground that it does not fall under the grounds for the adjustment of Section 4.2. A. (b) and (c) in relation to the violation of this case by the inquiree.

(C) Calculation of a discretionary adjustment penalty

The voluntary adjustment penalty surcharge shall be reduced by 10/100 of the compulsory adjustment penalty surcharge under the provisions of Section IV.3.c. (8) of the "Public Notice of the new Penalty Surcharge", which reduces from 32,174,000 won to 10/100 of the compulsory adjustment penalty surcharge.

(d) Determination of penalty surcharges

The penalty surcharge shall be the amount of less than 28,957,00 won per one million won from the discretionary adjusted penalty surcharge.

(2) Calculation of the basic penalty surcharge for delay in the purchase price of goods (A)

The offense of this case by the inquiree constitutes an unfair trade practice, and thus, constitutes a serious violation. Therefore, according to the provisions of subparagraph (a) of January 1, 4, 200, KRW 6,495,00 shall be calculated as a basic penalty surcharge, by multiplying the contract amount by 0.4% of the standard rate for imposition by the degree of gravity of the offense.

(b) Calculation of the mandatory adjustment penalty surcharge

The mandatory adjustment penalty surcharge is 6,495,000 won, since it does not fall under the grounds for the provision of Section 4.2. (a) and (c) with respect to the violation of this case by the person under question.

(C) Calculation of a discretionary adjustment penalty

The voluntary adjustment penalty surcharge shall be reduced by 10/100 of the compulsory adjustment penalty surcharge under the provisions of Section IV.3.c. (8) of the "Public Notice of the new Penalty Surcharge" because the net income of the person in question during the previous year is less than the amount of net income of the person in question in relation to the violation of this case, and the voluntary adjustment penalty surcharge shall be reduced by 5,846,000 won reduced from 6,495,000 won to 10/100.

(d) Determination of penalty surcharges

The penalty surcharge shall be determined by the amount of less than one million won per unit of the voluntary adjustment penalty surcharge of 5,846,000 won.

(3) Determination of final imposition penalty surcharges

The final penalty surcharge shall be 30 million won, which is the sum of the penalty surcharges for imposition by type of violation, such as the attached Table 6.

charge for final imposition of the inquiree in accordance with Table 6.

The unpaid amount of 28 million won for delayed payment following the suspension of the installation of penalty surcharges for violation shall be KRW 50 million for the overdue payment following the delayed purchase of goods.

7. Conclusion

In full view of the above review, the court below's above 2. A. through 5. A. of the respondent's act is in violation of Article 23 (1) 4 of the Act and Article 36 (1) of the Enforcement Decree of the Act [Attachment 1] related to Article 23 (1) 4 of the Act and Article 36 (1) of the Enforcement Decree of the Act, but its decision is made by applying the provisions of Articles 24 and 24-2 of the Act to the category and standard of unfair trade practices (the abuse of trade position).

The Fair Trade Commission has resolved as above.

December 5, 2005

chapter 16(2)(3) of this title.

The Vice-Chairperson and the Vice-Chairperson

The above members of the Dong-won

5 5 14 6

F.C. H. H. H. H. H.

The above Won Kim Yong-ho

The above Judgment of the Prime Minister

The Republic of Korea shall do so.