[과징금부과처분취소][공2015하,1617]
The purport of Article 35(1)1(a) and 35(1)3(a) of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act / The meaning of “actual control relationship” as provided for in the above provision
According to Article 22-2(1) and (3) of the Monopoly Regulation and Fair Trade Act, a person subject to reduction or exemption following a voluntary report is the first person who independently provided evidence necessary to prove that he/she is an unfair collaborative act and the second person. However, even in cases where two or more enterprisers participating in a collaborative act jointly provided evidence, if they jointly provide evidence, he/she is deemed to have provided necessary evidence. The purport of the provision is that a voluntary report on an unfair collaborative act is a principle by itself, and thus, a person is entitled to reduction or exemption benefits solely from such report, but if it is necessary for two or more enterprisers to recognize that a voluntary report is equivalent to a report on a joint report, a person subject to reduction or exemption under Article 35(1)1(a) and 3(a) of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act.
In light of the contents of the aforementioned statutes and the purport of the joint reduction and exemption system, the term “actual control relationship” means a case where each of the two or more enterprisers actually control the rest of the enterprisers by taking into account the following: (a) the degree of shares owned by each enterpriser; (b) degree and method of exercising influence in the decision-making; (c) whether each enterpriser is holding an executive position or holding an ordinary order in management; (d) awareness of the mutual relationship between the enterprisers; (e) whether each enterpriser is holding an accounting; (e) possibility of separate decision-making on the business territory and method; and (e) the circumstances leading to each enterpriser’s application for joint reduction and exemption.
Article 22-2 (1) and (3) of the Monopoly Regulation and Fair Trade Act, Article 35 (1) 1 (a) and 3 (a) of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act
KS Gas Co., Ltd. (Bae, Kim & Lee LLC, Attorneys Oi-seok et al., Counsel for the plaintiff-appellant)
Fair Trade Commission (Attorney Choi Byung-hee et al., Counsel for the defendant-appellant)
Defendant 1 and 8 others (Attorneys Lee Im-soo et al., Counsel for the defendant-appellant)
Seoul High Court Decision 2010Nu32091 decided May 24, 2012
The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. As to the joint reduction or exemption of enterprisers by voluntary report on unfair collaborative acts
According to Article 22-2(1) and (3) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”), in principle, a person subject to reduction or exemption following a voluntary report is the first person who independently provides evidence necessary to prove that he/she is an unfair collaborative act and the second person, but even if two or more enterprisers participating in a collaborative act jointly provide evidence, he/she is deemed to have provided necessary evidence if he/she is an affiliated company in a “actual control relationship.” The purport of the provision is that a voluntary report on an unfair collaborative act is a principle, and thus, he/she is entitled to reduction or exemption benefits solely from such voluntary report, but if it is necessary to recognize that a joint report is equivalent to a report filed by two or more enterprisers, he/she is also entitled to benefits from a voluntary report.
In light of the contents of the aforementioned statutes and the purport of the joint reduction and exemption system, the term “actual control relationship” means that each enterpriser owns shares in the company, the degree and method of exercising influence in the decision-making, whether the company is concurrently holding an office or not, whether the company is holding an office or not, whether the company is holding an office or not, whether the company is integrated into accounts, whether the company is able to independently determine its business territory or method, and the circumstances leading to the company’s application for joint reduction and exemption, etc., comprehensively taking into account all the circumstances, such as the degree of shares owned by each enterpriser, the degree of exercising influence in the decision-making, whether the company is holding an office or not, whether the company is in a separate position, whether the company
Examining the reasoning of the judgment below in light of the aforementioned legal principles, the part of the judgment of the court below stating to the effect that the substantial control relationship is not recognized since it is inappropriate in that it can be acknowledged as a business entity even if it belongs to the intention of competition relationship formally. However, considering the remaining circumstances considering the court below, the conclusion of the court below that the Plaintiff and the joint applicants for a tax reduction and exemption are not recognized as a substantial control relationship because they are operated independently from each other is justifiable. In so doing, the court below did not err by misapprehending the legal principles on the scope of substantial control relationship or by exceeding
2. As to the termination date of unfair collaborative act
For reasons indicated in its reasoning, the lower court rejected the Plaintiff’s assertion on the premise that the instant collaborative act was terminated on January 31, 2008 or on April 30, 208, or that the instant collaborative act was not performed after the said period.
Examining the record, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by misapprehending the legal doctrine regarding the termination period of collaborative acts, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical
3. As to the computation of relevant sales
The lower court determined that the sales amount of the LPG sold to the Korea Gas Corporation and the direct sales office are included in the relevant sales amount on the ground that the sales amount of the LPG directly affected by the sales price determined by the instant collaborative act and the LPG supplied to the Korea Gas Corporation and the direct sales office are the same products as the sale in the charging office, and that there is no discrimination
Examining the record, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by misapprehending the legal doctrine on related sales or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.
4. As to the deviation and abuse of discretionary power in the calculation of penalty surcharges
The lower court determined that, in light of the following: (a) the Defendant’s calculation process of penalty surcharges; (b) the instant collaborative act is difficult to be deemed to either contravene the principle of proportionality or contravene the principle of equity in the calculation of penalty surcharges at the time of calculating the basic penalty surcharges; and (c) the Defendant’s calculation of penalty surcharges is difficult to be deemed to violate the principle of proportionality; and (d) the Defendant’s calculation of penalty surcharges is also difficult in view of the Defendant’s calculation of penalty surcharges, based on the following: (a) the pertinent collaborative act led by the importers including the Plaintiff; (b) the purchase and sale of the LPG from the importer is less than the revenue company; (b) the unjust enrichment is less than the revenue company; (c) the entry barriers actually existed in the LPG import; and (d) the investigation partner cannot reduce the penalty surcharges for reasons of investigation cooperation at the stage of voluntary adjustment
Examining the record, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by misapprehending the legal doctrine regarding deviation and abuse of discretion, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules
5. 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.
Justices Lee Sang-hoon (Presiding Justice)