[2] The case holding that it cannot be deemed that the Fair Trade Commission's imposition of a penalty surcharge against a company which conducted an unfair collaborative act is considerably unfair because it has lost balance among the participants of the unfair collaborative act in light of the content and degree of the violation, duration and frequency of the violation, and the amount of profit

1. Plaintiff’s ground of appeal

Examining the reasoning of the judgment below in light of the records, the court below acknowledged facts as stated in its judgment, and concluded that the plaintiff jointly limits the quantity of the smuggling, and the plaintiff agreed on the agreement on the standard price of the smuggling products and the abolition or reduction of the incentive and the agreement on the abolition or reduction thereof, and it is just to determine that the agreement of the plaintiff was unfairly restricted competition in the fair sale market, and there is no violation of the rules of evidence or misunderstanding of the legal principles as to the establishment of unfair collaborative acts, as alleged in the

The plaintiff's ground of appeal that the calculation of penalty surcharge is erroneous by recognizing the termination of the violation as erroneous, is not affected by the conclusion of the judgment, since the court below completely canceled the payment order of penalty surcharge.

2. As to the Defendant’s ground of appeal

A. Ground of appeal No.1

Article 21 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) provides that “The Fair Trade Commission may order the enterpriser concerned to suspend the act, to publish the fact that the enterpriser is ordered to take corrective measures or to take other measures necessary for correction if there is an act violating the provisions of Article 19(1).” The language and text of the above provision, and where the order for corrective measures under the Fair Trade Act is excessively specific, the correction order under the Fair Trade Act includes a large number of transactions that are being implemented through somewhat changing their daily contents, and eventually is unreasonable, so the order for corrective measures has no choice but to avoid the universality and abstractity of such transactions. The contents of the order for corrective measures conform to the purport of the system for corrective measures, by interpreting that the order for corrective measures can only be interpreted as having the same type of acts that are likely to be repeated in the near future as well as the suspension of past violations. In light of the above en banc Decision 2001Du5347, Feb. 20, 2003, the Fair Trade Commission’s order for corrective measures and exchange of information can be deemed necessary for correction.

According to the evidence duly examined by the court below and the court below, eight companies including the plaintiff and eight companies engaged in the unfair collaborative act of this case, such as the agreement and determination of smuggling price, sale volume, or production volume (hereinafter "the information of this case"). The purpose of exchanging the information of this case is to facilitate the collaborative act of this case. The domestic smuggling market is to facilitate the collaborative act of this case, and the price can be easily conducted because the market share of upper three companies is 75% or less, and the price difference between products is not high. The information of this case was not disclosed to third parties such as consumers and administrative agencies, and was regularly exchanged within the company of the subcommittee company of the subcommittee company of this case. The information of this case is a detailed information on the price, sale volume, production volume, etc. of members of the subcommittee company of this case, which can be treated as confidential and affected generally in business activities, and the information of this case constitutes an individual member's act of providing information of this case, which can be identified as the price of this case as stipulated in Article 12 of the Fair Trade Act as of this case.

Furthermore, according to the reasoning of the judgment below, the defendant issued an order prohibiting the exchange of information in which "eight companies shall not exchange information on the prices, smugglings, or output between them in a way other than in the case of collecting information through the market, or in any other way." In light of the above phrase "except in the case of collecting information through the market," and the purport of the whole corrective order above, it can be known that the order prohibiting the exchange of information in this case only for the information which has not been disclosed at present or in the future, so it does not violate the principle of clarity and the principle of proportionality or the principle of proportionality.

Nevertheless, the court below held that the "other measures necessary for correction" under Article 21 of the Fair Trade Act do not include measures beyond the degree of suspension of the relevant act, and held that the information in this case exceeds the degree of suspension of act and exceeded the reasonable scope of the corrective order, and it violated the principle of excessive prohibition. Thus, the court below erred in the misapprehension of legal principles as to the scope of corrective order under the Fair Trade Act, which affected the conclusion of the judgment.

B. Ground of appeal No. 2

According to the reasoning of the judgment below, the court below determined that the Defendant’s arbitrary adjustment penalty surcharge calculated by the Defendant against six enterprisers including the Plaintiff exceeds 5% of average sales of the three business years immediately preceding the upper limit of the penalty surcharge under the relevant statutes, and uniformly, the Defendant’s imposition of penalty surcharge was in violation of the principle of proportionality or equality under the Constitution, and thus, the Defendant’s imposition of penalty surcharge significantly unfair compared to the Plaintiff is unlawful since it violated the principle of proportionality or equality under the Constitution, in the case of three companies, including ○○○ (State) with the lead of the illegal collaborative act in this case and with high market share. However, even though it was merely simple participation and low market share, it was reduced to approximately 23% in the case of the Plaintiff with low market share. Accordingly, it is unreasonable to reduce and reduce the penalty surcharge for each enterpriser, as in the case of the Plaintiff, since it is relatively unfavorable for the Plaintiff, as in the case of the Plaintiff, and thus, the Defendant’s uniform imposition of penalty surcharge on the Plaintiff is unlawful.

However, it is difficult to accept the judgment of the court below for the following reasons.

The Defendant calculated a surcharge for voluntary adjustment against each of the enterprisers engaged in the collaborative acts in this case, and calculated the amount equivalent to 5% of the average sales of each enterpriser as a penalty surcharge for each of the enterprisers. The imposition of a penalty surcharge for each of the above businesses shall be limited to the extent not exceeding the amount obtained by multiplying the average sales of the previous three business years by 5/100. This is because the Defendant’s imposition of a penalty surcharge for each enterpriser is determined based on the average sales of each enterpriser, and the amount of the penalty surcharge for each of the above businesses is determined based on the maximum amount of the penalty surcharge for each enterpriser’s economic burden. Thus, the amount of the penalty surcharge calculated based on such determination is determined by taking account of the contents and degree of each enterpriser’s economic burden, duration and recovery of the violation, and the amount of the penalty surcharge for each enterpriser’s unfair collaborative act is determined by Article 22 of the former Fair Trade Act and Article 9(1) of the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 18768, Mar. 31, 2005).

However, according to the facts acknowledged by the court below, the defendant's simple participation in the unfair collaborative act of this case and low market share were reduced by 30% by reflecting it at the time of calculating the voluntary adjustment penalty surcharge. However, the defendant did not fully reduce three companies, such as ○○ (main) with the lead of the unfair collaborative act of this case and with high market share. The penalty surcharge imposed on three companies, such as ○○ (main) with the lead of the unfair collaborative act of this case and with high market share, is much larger than the penalty surcharge imposed on the plaintiff. Three companies, such as ○○ (main) and 23% of the penalty surcharge imposed on the plaintiff. According to this, the defendant's disposition imposing the penalty surcharge of this case, in light of the content and degree of the violation, the period and recovery of the violation, and the size of profits acquired by the violation, etc., it cannot be deemed that the balance between the participants of the unfair collaborative act is significantly unfair.

Nevertheless, the court below erred by misapprehending the scope of discretion on the imposition of the penalty surcharge, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)