[2] The criteria for calculating penalty surcharges for an unfair collaborative act (i.e., the amount of sales during the period of violation) and the method of determining the scope of goods or services related to an unfair collaborative act, which is the basis for calculating the amount of penalty surcharges

[3] The case holding that the sales of the remaining 12 brand products, which are not directly included in the subject of collusion, should be included in the scope of "related sales" which is the basis for the calculation of the penalty surcharge, in calculating the penalty surcharge for laundry three and three brand products

[4] In a case where a company is divided, whether a penalty surcharge may be imposed on the newly incorporated company on the grounds of a violation prior to the division (negative in principle)

[2] According to Article 22 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 8572 of Aug. 3, 2007), Articles 9(1) and 61(1) [Attachment 2] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 20360 of Nov. 2, 2007), where an enterpriser jointly engages in an unfair collaborative act with another enterpriser, the Fair Trade Commission may impose upon the enterpriser a penalty surcharge calculated on the basis of the sales during the period of the violation. The scope of the goods or services related to the unfair collaborative act, which serves as the basis for the calculation of the penalty surcharge, should be determined on a specific, individual basis by taking into account the type, nature, purpose and substitution of the goods or services included in the agreement among the enterprisers who engaged in the unfair collaborative act, transaction area, transaction stage, etc.

[3] The case holding that the sales amount of the remaining 12 brand products that are not directly included in the subject of collusion should also be included in the scope of "related sales" which is the basis for the calculation of penalty surcharges, in light of the fact that, even if a taxation company separately sets the base price for the brand products which are represented by the homogeneity of laundry and laundry, and the fact that if the base price is determined for the brand products, the remaining products can not be affected by the influence of their price, etc.

[4] In the case of a division of a company, succession to the newly incorporated company or surviving company is the rights and obligations of the divided company. Thus, it is not allowed to impose penalty surcharges on the newly incorporated company on the grounds of a violation committed prior to the division, unless a penalty surcharge is imposed on the grounds of the violation committed prior to the division, only a simple fact act exists, and it cannot be said that there is any obligation to succeed to the divided company in relation to the penalty surcharge.

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

In the event that business operators have reached an agreement on the basic principles of unfair collaborative acts and have reached several agreements in the process of implementing such agreement, and even if they have reached several agreements over a long time without the agreement on such basic principles, if each agreement has been implemented for the same purpose on the basis of a single agreement and without being cut off, it is reasonable to see that such a series of agreements as a whole are one unfair collaborative act, barring special circumstances (see, e.g., Supreme Court Decisions 2007Du3756, Sept. 25, 2008; 2008Du16179, Jan. 30, 2009).

The lower court determined that each of the instant collaborative acts ought to be deemed an individual collaborative act, not a single continuous act, on the premise that there must be an agreement on the basic principles of unfair collaborative act in order to become a single unfair collaborative act, on the premise that there exists an agreement on the basic principles of unfair collaborative act by tax 4 companies, including the Plaintiff, to reach an agreement on the basic principles of unfair collaborative act, and there is no evidence to acknowledge the fact that the agreement on the basic principles of unfair collaborative act was continued every year in the course of executing such agreement.

However, in light of the above legal principles, even though there is no agreement on the basic principles of unfair collaborative act, if each collaborative act in this case was conducted for the same purpose on the basis of a single intent, and without being cut off, it may be viewed as a single unfair collaborative act. Thus, the court below should have judged whether each collaborative act in this case constitutes a single unfair collaborative act in light of the above circumstances, although the court below should have determined whether the act in this case constitutes a single unfair collaborative act as a whole, it should have determined otherwise on the ground that there is no evidence to acknowledge the fact that the four companies including the plaintiff agreed on the basic principles of each collaborative act in this case, and that there is no evidence to acknowledge the fact that the agreement was continued to have been reached every year in the course of executing the agreement. Thus, the court below erred

2. As to the third ground for appeal

According to Article 22 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 8572 of Aug. 3, 2007), Articles 9(1) and 61(1) [Attachment 2] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 20360 of Nov. 2, 2007), where an enterpriser has jointly conducted an unfair collaborative act with another enterpriser, the Fair Trade Commission may impose upon the enterpriser a penalty surcharge calculated on the basis of the sales amount during the period of the violation. The scope of the goods or services related to the unfair collaborative act, which serves as the basis for calculating the penalty surcharge, should be determined individually and specifically by taking into account the type and use of the goods or services included in the agreement between the enterpriser who has conducted the unfair collaborative act, the possibility of replacing them, transaction areas, transaction stages, etc. (see, e.g., Supreme Court Decisions 2001Du10387, Nov. 10, 2003>

기록에 의하면, 원고가 생산하였거나 생산하고 있는 세제제품은 세탁세제 11개 브랜드 제품 및 주방세제 7개 브랜드 제품이고, 그 중 세탁세제 3개 브랜드 제품(한스푼, 테크, 수퍼타이) 및 주방세제 3개 브랜드 제품(자연퐁, 자연퐁 싹, 퐁퐁)이 이 사건 담합의 대상이 되었는데, 나머지 12개의 브랜드 제품들도 그 주요 성분 등이 담합의 대상으로 된 제품들과 같은 것으로 보이는 점, 원고를 포함한 세제 4사가 세제제품의 브랜드별로 가격을 달리 책정하고 있기는 하나, 세탁·주방세제라는 동질성으로 인하여 위와 같이 대표성 있는 브랜드 제품에 대하여 기준가격을 결정하고 나면 나머지 제품들도 그 가격의 영향을 받지 않을 수 없는 점, 실제로도 소외 1 주식회사의 2001. 11. 19.자 이사회 자료에는 2001. 8.경 가격담합에 따른 가격인상의 대상이 “주방/분말 등 전 품목에 대한 매가 인상 진행”, “3사 공동대응으로 가격 인상 완료”라고 기재되어 있고, 2002. 8. 28.자 자료에는 2002. 8.경 가격담합에 따른 가격 인상의 대상이 “주방/분말세제”로, 그 가격 인상의 방법은 “각사 1위 브랜드를 기준으로 인상”이라고 각 기재되어 있는 점, 통상 대형 할인점에 대한 판매가격이 원고를 포함한 세제 4사가 공급하는 제품의 최저가이므로 그 외의 유통채널들도 대형 할인점에 대한 판매가격에 영향을 받지 않을 수 없는 점 등을 알 수 있는바, 이러한 사정을 종합하여 보면 이 사건 담합의 대상에 직접적으로 포함되지 아니한 나머지 12개 브랜드 제품들의 매출액도 관련매출액의 범위에 포함되어야 할 것이다.

Nevertheless, the court below determined that the sales amount of the above 12 brand products should be excluded from the scope of related sales amount, which serves as the basis for calculating penalty surcharges, solely based on its stated reasoning. In so doing, the court below erred by misapprehending the legal principles on the scope of related sales amount, which led to failure to exhaust all necessary deliberations, and the ground of appeal

3. As to the fourth ground for appeal

Succession to a newly incorporated company or a surviving company at the time of division is the rights and obligations of the divided company. Thus, a simple factual act exists until a penalty surcharge is imposed on the grounds of a violation committed prior to the division, and it cannot be said that there is any obligation to succeed to the divided company in relation to the penalty surcharge. Thus, it is not allowed to impose a penalty surcharge on the newly incorporated company on the grounds of a violation committed prior to the division, unless there is a special provision (see Supreme Court Decision 2006Du18928, Nov. 29, 2007).

The lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the adopted evidence, and determined that the Plaintiff’s act of violation up to March 31, 2001, which was the basis for calculating the instant penalty surcharge, included in the period of violation, which served as the basis for calculating the instant penalty surcharge, was illegal, on the ground of the violation committed before the division of Nonparty 2.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the succession of liability when a company is divided.

4. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)