The costs of appeal are assessed against the defendant.

1. As to the grounds of appeal Nos. 1 and 2

A. Article 22-2(1) of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Fair Trade Act") provides that "any person who falls under any of the following subparagraphs may be mitigated or exempted from the penalty surcharge pursuant to the provisions of Article 21 or Article 22 (Penalty Surcharge)" and subparagraph 2 provides that "any person who has cooperated in the investigation by means of providing evidence, etc." and Article 22-2(3) of the Fair Trade Act provides that "the scope of a person who has been mitigated or exempted pursuant to the provisions of paragraph (1) and the standards and extent of mitigation or exemption shall be prescribed by Presidential Decree".

According to such delegation, Article 35(1)2 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 23475, Dec. 30, 201; hereinafter "former Enforcement Decree of the Fair Trade Act") provides that "a person who has cooperated in an investigation conducted by the Fair Trade Commission after the investigation falls under all of the following items shall be exempted from penalty surcharges, and corrective measures shall be mitigated or exempted." Article 35(1)2 of the former Enforcement Decree of the Fair Trade Act provides that "a person who has failed to obtain information on the unfair collaborative act or to secure sufficient evidence necessary to substantiate the unfair collaborative act", "a person who has independently provided evidence necessary to substantiate the unfair collaborative act", "b) shall be the first person who has provided such evidence as to the unfair collaborative act; a person who has faithfully cooperateed until the investigation is completed, such as all statements related to the unfair collaborative act and submission of related materials, and a person who has suspended the unfair collaborative act" shall be determined and publicly notified by the Fair Trade Commission.

Meanwhile, “Necessary evidence” under Article 35(1)2 (b) of the former Enforcement Decree of the Fair Trade Act refers to the evidence that can directly or indirectly prove the unfair collaborative act. Thus, it includes documents and statements (see, e.g., Supreme Court Decision 2007Du2920, Oct. 23, 2008). Article 4(1) of the former Public Notice on Operation of the System for Reduction and Exemption (amended by Notice No. 2011-6, Jul. 21, 2011; hereinafter referred to as the “former Public Notice on Reduction and Exemption”) provides for the submission of documents, electronic data, etc. to verify the intent and liaison between the enterprisers as described in the data, contents of the agreement, and matters concerning the meeting.

B. After comprehensively taking account of the adopted evidence, the lower court determined that (1) the report materials of the Seoul Metropolitan Police Agency and the tender-related materials that the Plaintiff secured by the Defendant at the time of applying for the instant tax reduction or exemption are merely the basic materials on the proviso to the instant collaborative act, and it is difficult to view that the Defendant sufficiently secured evidence necessary to prove the instant collaborative act by the 17 participating companies, including the Plaintiff, and that (2) the A’s confirmation document, B’s statement, and tender specifications submitted by the Plaintiff as additional materials constituted evidence necessary to prove that the instant bidding act by the 17 participating companies, including the Plaintiff, was unfair collaborative act.

Examining the reasoning of the judgment below in light of the evidence duly admitted, the above judgment below is based on the legal principles as seen earlier, and it did not err in the misapprehension of legal principles as to interpretation of Article 35 (1) 2 (a) of the former Enforcement Decree of the Fair Trade Act, the scope of delegation under Article 35 (4) of the former Enforcement Decree of the Fair Trade Act, and the limitation of delegated legislation, as otherwise alleged in the grounds of appeal.

2. As to the third ground for appeal

A notice of non-approval of reduction or exemption for corrective measures or application for reduction or exemption of penalty surcharges by a person who has filed an unfair collaborative act under Article 14 of the former Public Notice of Reduction or Exemption constitutes an administrative disposition subject to appeal litigation (see Supreme Court Decision 2010Du3541, Sept. 27, 2012).

On the other hand, in a case where a series of procedures are conducted in a series of stages in order to achieve the same administrative purpose and a subsequent disposition causes a legal effect by combining each other, if a prior disposition causes a defect of the prior disposition, the subsequent disposition taken on the premise of the prior disposition may also be deemed an illegal disposition with the same defect as that of the prior disposition and may be filed for revocation as an appeal litigation (see, e.g., Supreme Court Decisions 92Nu4567, Feb. 9, 1993; 95Nu12507, Feb. 9, 1996).

After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its holding, and determined that the Plaintiff may seek the revocation of the instant disposition on the ground that: (a) the determination of whether to recognize the status of a voluntary reporter, etc. who made an unfair collaborative act as to an application for reduction or exemption is based on the premise to determine whether to grant a reduction or exemption of corrective measures and penalty surcharges pursuant to a voluntary report, etc.; (b) the notification of non-approval of reduction or exemption, corrective measures, and a penalty surcharge payment order constitutes a series of procedures consecutively conducted in order to achieve the same administrative purpose or to bring about a single legal effect through the combination thereof; and (c) even if the notification of non-recognition of the status of the first investigator for investigation to the Plaintiff was insufficient, the Plaintiff could seek the revocation of the instant disposition on the ground that it

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the force of non-existence of reduction or exemption, as otherwise alleged in the ground of appeal.

3. As to the fourth ground for appeal

Article 35(1)2 of the former Enforcement Decree of the Fair Trade Act provides that a person who cooperates in an investigation conducted by the Fair Trade Commission after commencing an investigation into an unfair collaborative act shall be exempted from penalty surcharges and shall be mitigated or exempted from corrective measures if the person satisfies certain requirements. On the other hand, in cases where a corrective measure to which discretion is recognized as to the degree of disposition deviatess from discretionary authority, the court can only determine whether the person is a deviation from discretionary authority, but can not determine the degree of the discretion within the scope of discretionary authority. Thus, the court is bound to revoke the entire part, and the court may not only revoke the part exceeding the reasonable part (see, e.g., Supreme Court Decisions 2005Du3172, Oct. 10, 207; 2005Du7031, Jul. 15, 2010).

The lower court determined that the Defendant’s corrective measures in this case should be revoked in its entirety on the ground that the Plaintiff’s mistakes as to whether the requirements for the first investigative cooperation are met, and that the Defendant’s mistakes as to whether the requirements for the first investigative cooperation are met, and that the Defendant’s abuse of discretion or deviations from its limitation should be revoked.

The judgment of the court below is deemed to be based on the above legal principles, and there is no error in the misapprehension of legal principles as to the existence of discretion in corrective measures, as alleged in the grounds of appeal.

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 on the bench.

Justices Lee Sang-hoon

Justices Kim Yong-deok

Justices Kim So-young