[2] The meaning of "the preceding three business years" under Article 22 of the former Monopoly Regulation and Fair Trade Act and Article 9 (1) of the Enforcement Decree of the same Act

[3] Whether the disposition of a business entity that committed an unfair collaborative act is a deviation from or abused the scope of discretion, on the ground that the penalty surcharge was calculated based on the average sales amount for the immediately preceding three business years pursuant to Article 22 of the former Monopoly Regulation and Fair Trade Act and Article 9(1) of the Enforcement Decree of the same Act, leading the unfair collaborative act and the market share of the business entity with higher market share was reduced (negative in principle)

1. Regarding ground of appeal No. 1

Article 22-2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004; hereinafter the same shall apply) and Article 35(1)1 of the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 18356 of Apr. 1, 2004) shall be independently reported as a matter of principle, under the provisions of Article 22-2 of the former Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 18356 of Apr. 1, 2004). This is because, if two or more enterprisers jointly reported, they can be subjected to reduction or exemption by means of voluntary declaration in collusion with those participating in the unfair collaborative act, thereby undermining the trust among the participating enterprisers, thereby impairing the purpose of the voluntary declaration reduction or exemption system to discontinue or prevent the unfair collaborative act. However, if two or more enterprisers are affiliated with substantially controlling relation, or if they are participating in a division or transfer of business of a company, they do not violate the purpose of the reduction system.

According to the reasoning of the judgment below, the plaintiff and the non-party 1 corporation are involved in the transfer of business, but they are not allowed to report the joint progress in accordance with the above legal principles as well as other three other companies from April 1, 1996 to October 1, 2003, with respect to the construction volume of domestic elevator ordered by large private demand centers and government-funded demand centers, and with other five companies from October 1, 2001 to October 1, 2003.

Although the reasoning of the lower court on this part is somewhat inappropriate, the conclusion that rejected this part of the Plaintiff’s assertion is justifiable, and there is no error of law affecting the conclusion of the judgment.

2. Regarding ground of appeal No. 2

A. Article 22 of the former Monopoly Regulation and Fair Trade Act and Article 9(1) of the former Enforcement Decree of the Fair Trade Act stipulate that an enterpriser who has engaged in unfair collaborative acts shall impose a penalty surcharge not exceeding 5/100 of average sales for the immediately preceding three business years. Here, “the immediately preceding three business years” refer to the three business years as of the end of the offense committed by the enterpriser, and it does not mean the three business years immediately preceding the day when the enterpriser is ordered to pay the penalty surcharge, as alleged in the grounds of appeal. In addition, setting the upper limit of the penalty surcharge based on average sales of the enterpriser is intended to consider the enterpriser’s financial burden in the imposition of the penalty surcharge, and this does not constitute the basis for calculating the discretionary adjustment penalty surcharge pursuant to the relevant Acts and subordinate statutes. Accordingly, the amount of the penalty surcharge calculated as above is not the content and degree of the offense committed, the period and frequency of the offense, and the amount of profit acquired from the offense, and thus, considering the factors considered in Article 55-3(1) of the former Monopoly Regulation and Fair Trade Act.

Examining the records in light of the above legal principles, we affirm the judgment below that the defendant's imposition of the penalty surcharge in this case did not contain any violation of the law of deviation from or abuse of discretion in the application of the imposition standard rate and the calculation of the penalty surcharge, and there is no error of law such as misunderstanding

B. According to the records and the reasoning of the judgment below, the non-party 1 corporation only made the voluntary report or cooperation in the investigation of this case in its name and did not act on behalf of the plaintiff, the plaintiff and the non-party 1 corporation are involved in the transfer of business. Since they participated in two unfair collaborative acts before the transfer of business, they are not recognized as joint report and are in the position of conflicting interests in the report priority. According to Articles 2.6 and 2.7 of the Assets Transfer Agreement between the non-party 2 corporation and the non-party 3 corporation, which was entered into on July 18, 2003, and the telegraph of the non-party 1 corporation, and the non-party 2 corporation among the violations before October 1, 2003, the non-party 1 corporation was responsible for the violation of the law as to the non-party 3 corporation, and the non-party 2 corporation's voluntary report or cooperation is included in the non-party 1 corporation's voluntary report as part of the investigation or cooperation of the plaintiff.

In light of these circumstances, it is difficult to view Nonparty 1 corporation as a voluntary report or cooperation by acting on behalf of or on behalf of the Plaintiff, and therefore, even if the lower court did not explicitly determine whether the Plaintiff is subject to mitigation as an investigator, it is justifiable to accept the Plaintiff’s assertion on this point. Therefore, there is no error of law affecting the conclusion of

3. 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 Park Si-hwan (Presiding Justice)