[2] The case holding that seven enterprisers engaged in the film distribution business or film screening business agree to set forth the kinds and scope of discounts permitted in the theater, prohibit all other discounts, and impose sanctions on the theater that are engaged in such business, and that the act of practice in accordance with the agreement constitutes a collaborative act of determining, maintaining, or changing the price, and thereby, the competition in the market was reduced unfairly

[3] The standard for calculating penalty surcharges for an unfair collaborative act (=the standard for determining the scope of goods or services related to an unfair collaborative act, which is the basis for calculating the amount of penalty surcharges) and the standard for determining the amount of penalty surcharges

[4] Where the Fair Trade Commission calculated penalty surcharges by including the amount of sales after a certain motion picture distributor, etc. committed an unfair collaborative act in the period of violation, the case reversing the judgment below that held that the above order to pay penalty surcharges was justifiable even though the portion exceeding the reasonable amount of penalty surcharges was revoked or the entire order to pay penalty surcharges was revoked, etc.

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

The issue of whether a collaborative act restricts competition under Article 19(1) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 8631 of Aug. 3, 2007; hereinafter “former Monopoly Regulation and Fair Trade Act”) shall be determined individually by examining whether a collaborative act causes or is likely to cause impacts on the determination of price, quantity, quality, and other terms and conditions of trading by reducing competition in a particular business area due to the collaborative act in question, taking into account various circumstances such as characteristics of the act in question, consumer product selection standards, impact of the act in question on market and enterprisers on competition. Further, since a collaborative act jointly decided or changed price by an enterpriser causes or is likely to cause impacts on the determination of price freely depending on its intent by reducing price competition within the scope, such collaborative act in question may be deemed unfair unless there are special circumstances (see, e.g., Supreme Court Decision 2008Du21058, Mar. 26, 2009).

Based on its adopted evidence, the court below acknowledged the following facts: (a) on March 12, 2007, the agreement in this case was concluded that seven enterprisers, including the Plaintiff, etc., who are operating a film distributing business or film screening business, occupy approximately 79.3% of the domestic film distributing market and about 60% of the film screening market, set up the types and scope of discounts permitted in the theater and prohibit all discounts other than the scope of discounts permitted in the theater, and impose sanctions on the theater to commit these discounts; (b) on the basis of the fact that the agreement in this case and its implementation constituted a collaborative act of determining, maintaining, or changing the prices, and accordingly, reduced unfairly the competition of the market.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence, misunderstanding of legal principles as to competition limitation and illegality, as otherwise alleged in the

2. As to the third ground for appeal

According to Article 22 of the former Monopoly Regulation and Fair Trade Act, Articles 9(1) and 61(1) [Attachment Table 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 based on the sales during the period of the relevant violation. In calculating the sales amount, 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 individually and specifically by taking into account the type, nature, purpose and substitution of the goods or services included in the agreement between the enterpriser who has committed the unfair collaborative act, transaction area, transaction channel, transaction channel, etc. (see Supreme Court Decisions 2001Du10387, Jan. 10, 2003; 2008Du17035, Jun. 25, 2009).

In light of the above legal principles and the records, the court below is justified to determine that the collaborative act of this case, based on the facts acknowledged in its reasoning, affected the sales of all movies distributed and screened during the period of the violation, and thus, the sales amount, which is the basis for calculating the penalty, should be calculated based on the total sales amount of movies distributed and screened during the

However, examining the records of Gap evidence Nos. 1 and 2, Gap evidence Nos. 18-1 and Eul evidence Nos. 12, which the court below adopted or rejected, in light of the records, the defendant calculated the sales amount which forms the basis for calculating the penalty surcharge in the disposition of this case from March 12, 2007 to July 25, 2007. In the case of some movies shown after July 25, 2007, it appears that the sales amount after the period of the violation is included in the sales amount which serves as the basis for calculating the penalty surcharge. Thus, the court below should examine the scope of sales after the period of the violation included in the sales amount, which serves as the basis for calculating the penalty surcharge, in detail, after calculating the amount of the penalty surcharge, and if it is impossible to cancel or make it impossible to do so, the court below should have cancelled all of the payment order of the penalty surcharge.

Nevertheless, the court below did not reach this and judged that the above order of payment of penalty surcharge was justifiable. Thus, the court below erred by misapprehending the legal principles on sales, which is the basis for the calculation of penalty surcharge, or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal containing this error has merit

3. Conclusion

Therefore, the part of the judgment of the court below regarding the payment order of penalty surcharge stated in the annexed Table 1 of the judgment below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent

Justices Kim Young-ran (Presiding Justice)