[2] The method of determining whether a discretionary adjustment penalty surcharge constitutes “a case where it is deemed that it is excessive because it is not sufficiently reflected the offender’s ability to bear the actual burden, etc.” under Article 61(1) [Attachment Table 2] 2(d)-1 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act

[2] In light of the purport of Article 61(1) [Attachment 2] [Attachment 2] subparag. 2(d)-1 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 23864, Jun. 19, 2012) in light of the purpose of the Monopoly Regulation and Fair Trade Act’s provision of actual ability of a violating enterpriser as a reason for voluntary mitigation, the determination should be made by comprehensively taking into account the overall financial status of the infringing enterpriser, including the content of profit and loss, such as the status of assets, capital and liabilities, the amount of net income, and the amount of earned surplus, unless there are special circumstances.

1. Plaintiff’s ground of appeal

A. Regarding ground of appeal No. 1

After recognizing the facts stated in its reasoning based on adopted evidence, the lower court determined that the total tender documentation of this case constitutes an unfair collaborative act prohibited under Article 19(1)8 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”).

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the elements for establishing

B. Regarding ground of appeal No. 2

In light of the relevant legal principles and records, the court below is just in holding that the corrective order of this case does not violate the principle of clarity or the principle of proportionality, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the violation of the principle of clarity and proportionality, or by failing to exhaust all necessary

2. As to the Defendant’s ground of appeal

A. Regarding ground of appeal No. 1

(1) According to Article 61(1) [Attachment 2] 2-D. 1 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 23864, Jun. 19, 2012; hereinafter “former Enforcement Decree of the Fair Trade Act”), where it is deemed that a violation enterpriser’s actual ability to bear the burden or its violation is too serious because it has failed to fully reflect the effect of the violation on the market, or other matters such as the scale of profits acquired from the market or economic situation and the violation, a penalty surcharge may be imposed by reducing the amount by up to 50/100 of the second adjusted calculation standards (this text). However, if it is deemed reasonable to reduce the amount by reducing the amount exceeding 50/100 due to a significant shortage in the ability to pay the penalty by the violator enterpriser, significant change in the market or industry conditions to which the violator enterpriser belongs, continuous aggravation, economic crisis, or any other similar cause, it may be reduced by more than 50/100 (proviso).

In light of the contents and purport of the aforementioned relevant statutes, the Defendant has discretion to determine whether to impose penalty surcharges on violations of the Fair Trade Act and, if imposing penalty surcharges, the amount of penalty surcharges within a specific scope prescribed by the Fair Trade Act and subordinate statutes. However, if there are grounds such as misunderstanding of facts constituting the basis for imposing penalty surcharges or violating the principle of proportionality and equality when exercising such discretion, it is illegal as a deviation or abuse of discretionary power (see, e.g., Supreme Court Decision 2011Du6387, Jul. 14, 2011).

In addition, whether an administrative disposition is illegal in an administrative litigation shall be determined on the basis of the law and factual state at the time when the administrative disposition was taken (see Supreme Court Decision 2007Du1811, May 11, 2007, etc.). The same applies to a corrective order and a penalty surcharge payment order issued by the defendant pursuant to the Fair Trade Act (hereinafter “order, etc. to pay penalty surcharges”). Therefore, whether the Defendant’s order to pay penalty surcharges, etc. is illegal as a deviation from or abuse of discretion should be determined on the basis of the actual state at the time of the “resolution” in which the

Furthermore, in light of the purport of Article 61(1) [Attachment 2] 2-4(d) of the former Enforcement Decree of the Fair Trade Act, whether the Fair Trade Act’s order constitutes “a case where it is deemed that the discretionary adjustment penalty surcharge is excessive because it failed to fully reflect the actual ability of the violating enterpriser, etc.” under Article 61(1) [Attachment 2] 2-2(d) of the former Enforcement Decree of the Fair Trade Act should be determined by comprehensively taking into account the financial status of the violating enterpriser, such as assets, capital, and liabilities

(2) According to the reasoning of the lower judgment, the lower court stated to the effect that ① the amount weighted average of the net income in the immediately preceding business year as of the date of deliberation on financial statements, the preceding business year, the preceding business year, and the preceding business year, as of March 28, 2012 (amended by Notice No. 2012-6 of the Fair Trade Commission) can be considered to have been reduced by KRW 100 million, based on the Plaintiff’s actual burden to bear the burden to bear the penalty surcharge of KRW 200,000,000,000,000,000,000,000,000 won as of KRW 20,000,000,000,000,000,000 won as of KRW 20,000,000,000,000,000,000 won as of KRW 10,000,00,00,00.

(3) Examining the record in light of the aforementioned legal principles, it is reasonable for the lower court to take into account the Plaintiff’s financial status in 2013, which was close to “ February 25, 2014,” which is the date of the instant decision, as well as the Plaintiff’s financial status in 2010 through 2012, when determining the Plaintiff’s actual ability to bear the burden. However, it is inappropriate to take into account only the net income per se stipulated in the instant announcement clause as the main factor to be considered.

However, in administrative litigation, the basic framework of the principle of party or the principle of pleading is still maintained (see Supreme Court Decision 2011Du26589 decided August 22, 2013, etc.).

According to the records, the plaintiff asserted that the court below's failure to reduce the amount of net losses caused by the defendant's actual ability in 2013 as above was illegal as abuse of discretionary authority. In this regard, the defendant asserted that the order to pay the penalty surcharge in this case was justifiable since the plaintiff failed to meet the requirements of the notification clause in this case and cannot determine whether to reduce the penalty surcharge by applying other standards. As such, as the ground of appeal in this part, the defendant did not assert that the order to pay the penalty surcharge in this case should be determined by comprehensively considering the overall financial status, including not only net income but also assets, capital, liabilities, and earned surplus, as well as net income. The plaintiff did not submit materials to determine the amount and scale of the plaintiff's earned surplus until the closing of argument in the court below which is the fact-finding court. Accordingly, the court below rejected the defendant's argument that the plaintiff did not have any reason to reduce the amount until the time when the plaintiff fails to meet the requirements of the notification clause in this case. In light of the fact that the plaintiff suffered net losses over the maximum amount of the plaintiff in this case, it did not err.

Therefore, the defendant asserted new facts, such as earned surplus, as a factor to determine actual ability only when it comes to the trial, and it is not allowed to dispute that the court below erred by misapprehending the legal principles on the scope of discretion of the defendant or failing to exhaust all necessary deliberations, and therefore, this part of the ground of appeal is not acceptable.

B. As to the grounds of appeal Nos. 2 and 3

The gist of the Defendant’s allegation in the grounds of appeal is that the lower court erred in the misapprehension of discretionary authority by violating the principle of equality, etc. However, as seen earlier, the instant penalty surcharge payment order is based on a misunderstanding of facts as to the Plaintiff’s actual ability, and thus, cannot be exempted from revocation due to an abuse of discretionary authority. Thus, this part of the grounds of appeal is merely an assertion of the grounds that could not affect the conclusion of the judgment, and thus, it cannot be accepted without any need to further examine.

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 Sang-ok (Presiding Justice)