2. The plaintiffs' remaining claims are dismissed.

3. The costs of lawsuit are divided into two parts, one of which is borne by the Plaintiffs, and the remainder by the Defendant respectively.

A. The general status of the plaintiffs

Plaintiff Ring System and Incorporated Co., Ltd., Plaintiff Yingles Co., Ltd., Ltd., Plaintiff Yingles, neglect chemicals, and food Co., Ltd. (hereinafter referred to as “Plaintiff Pingles”; Plaintiff Yingles; Plaintiff Yingles; Plaintiff 3; and Plaintiff 3, etc., were all companies manufacturing and selling ice and products; respectively, they fall under the category of business operators under Article 2 subparag. 1 of the Monopoly Regulation and Fair Trade Act (amended by Act No. 8631 of Aug. 3, 2007; hereinafter “Fair Trade Act”). As of December 31, 2005, the general status as of December 31, 2005 falls under the following Table 1, which was jointly owned by the Central Research Institute, which is an affiliate company of the same kind of products. Plaintiff Yingjing and Plaintiff 3 was jointly owned by the Central Research Institute, which is an affiliate company of the same kind of products.

(Voting 1 omitted)

(b) Structures and actual conditions of the ice and market;

(i) the characteristics of ice and industry;

㈎ 빙과제품의 종류

Food factory supplies under the Food Sanitation Act (Public Notice No. 2005-48 of the Food and Drug Administration No. 2005) classify ice cream, ice ice scream, etc. as “ice cream products.” The definition of ice cream as its main ingredient, using crude oil and processed milk products as its main ingredient, and freezing and light the other foods or food additives, etc., and then freezing them into ice cream.

Although ice products sold to consumers have been released in various ways according to the type of materials or the shape of products, ice manufacturing is divided into containers (CONE), ba (BAR), cups, pents, and home (HOM) by the type of ice and container (containers). According to the classification of food code, container and home belongs to the ice cream and they belong to the ice cream.

㈏ 이 사건 콘 제품의 특징

Products among ice products manufactured and sold by ice and four companies are different in terms of other ice products, materials, ingredients, manufacturing process, etc., and have nutrition and scams in addition to scams, in comparison with other ice products. The ice and four scams, which are the products representing the plaintiff scams and four scams, are the core main brand known to consumers, and at the same time, the highest competition in sales among the ice products is the highest product.

(Attachment 2 omitted)

㈐ 빙과시장의 특성

The ice and the market, which are sold through the general distribution channel, has formed a monopoly system for a long time based on the ice and four firm market dominance, distribution network, high product history, and technical capabilities. The sale of ice and products has a lot of impacts on the climate condition of the sexual water season, seasonal factors, the consumption tendency of the main consumption floor, the marketing strategies of ice research, etc. For the expansion of the consumption floor and the promotion of the sale of ice products, while improving the quality of the main core product that maintains the human body for a long time, and continuously exposing various containers and new products with unique efficacys.

In order to promote the sale of ice and products, ice manufacturing is to provide freezing show cases to retail stores in preference to competitors so that only ice and products can be displayed and sold, and the agencies are supported by paying operating expenses such as incentives.

(2) The current status of the ice market

㈎ 시장규모 및 참여업체별 점유율

The total size of ice and the market is estimated to the level of KRW 1.2 billion as of the year 2005, and the sales of 4 companies through the general distribution channel and approximately KRW 80.85% of the total ice and the market as a member of approximately 1 trillion. It is understood that the remainder accounts for small and medium ice manufacturing and iceing. The sales and market share of ice and 4 companies are as follows:

(Attachment 3 omitted)

Examining ice and four ice and the sales cost of each type of product, pents, containers, home, and cups are net, and the sales and sales cost of the product are as follows:

(Attachment 4 omitted)

㈏ 빙과제품의 유통구조

When a business branch of ice manufacturing in each region requests the quantity of orders received from a place of business or an agency, ice manufacturing is supplied to a place of business or an agency, and retail stores are supplied with ice manufacturing and distribution by a place of business or an agency and finally sell to consumers.In recent years, according to the increase in sales through new distribution channels such as discount stores and convenience stores, some ice manufacturing have established an exclusive distribution organization and directly supplies ice manufacturing without going through a place of business or an agency.

㈐ 대리점과의 거래방식

The examination of ice has a place of business or an agency directly operated for each region and supplies ice to retail stores. The types of agencies are divided into a single agency dealing only with one ice manufacturing product and a mixed agency dealing with more than one ice manufacturing product.

The method of settling the sales proceeds with ice manufacturing and the agency is taking the method of paying the sales proceeds by the agency to the ice manufacturing by the specific day of the following month, and the ice manufacturing provides the agency with incentives to the agency, thereby inducing the payment of sales proceeds within the deadline for payment.

Although there are some differences in the total support rate that ice research pays to the agency, it is understood as 36% compared to the total sales as of the year 2005, and as competition between competitors is heating, the total support rate that is paid to agencies, i.e., business expenses, can be increased.

(c) Price increases for ice and four buildings;

The ice and four Companies: < Amended by Presidential Decree No. 18720, Mar. 24, 2006; Presidential Decree No. 18735, Jun. 1, 2006; Presidential Decree No. 18740, Feb. 24, 2006; Presidential Decree No. 18740, Feb. 24, 2006; Presidential Decree No. 18747, Feb. 29, 200; Presidential Decree No. 18747, Feb. 24, 2006; Presidential Decree No. 17470, Feb. 24, 2006; Presidential Decree No. 17470, Feb. 1, 2006>

(Voting 5 omitted)

(Voting 6 omitted)

D. The defendant's disposition

(1) On August 2, 2007, the Defendant agreed to increase the consumer price of the instant container by ice and 4 companies around January 28, 2005, and then recognized that the first and second prices were implemented as above. The above acts of ice and 4 companies constituted an unfair collaborative act as stipulated in Article 19(1)1 of the Fair Trade Act, and ordered correction orders and payment of penalty surcharges as stated in the attached Table 1 (hereinafter referred to as the “instant disposition”).

(2) The criteria for calculating the amount of penalty surcharge against the plaintiffs are as follows.

㈎ 근거규정 : 구 독점규제 및 공정거래에 관한 법률(2004. 12. 31. 법률 제7315호로 개정되기 전의 것), 구 독점규제 및 공정거래에 관한 법률 시행령(2005. 3. 1. 대통령령 제18768호로 개정되기 전의 것), 구 과징금 부과 세부기준 등에 관한 고시(2007. 12. 31. 공정거래위원회 고시 제2007-15호로 개정되기 전의 것. 이하 ‘구 과징금 고시’라 한다).

㈏ 관련매출액

(1) The scope of the product concerned: the container of this case

(2) Exclusion of VAT (value-added tax) and sales discount.

③ Violation Period: The period on January 28, 2005, on which the ice and four companies agreed to raise the containers of this case step by step, shall be deemed to be the first day, and on March 14, 2007, on March 14, 2007, the date of the instant deliberation, spring on March 14, 207

㈐ 기본과징금의 산정 : 빙과 4개사의 가격인상 합의는 ‘중대한 위반행위’에 해당되므로 부과기준율 3%를 적용하여 다음〈표 7〉와 같이 기본과징금을 결정함

(Voting 7 omitted)

㈑ 의무적 조정과징금의 산정 : 의무적 조정사유 없음.

㈒ 임의적 조정과징금의 산정 : 원고들의 이사 또는 그 이상에 해당하는 고위 임원이 위반행위에 직접 관여한 경우에 해당하므로 의무적 조정과징금에서 10%를 가중함.

㈓ 부과과징금의 결정 : 원고들이 권장소비자가격을 인상하였지만 실제 소비자들에게 판매되는 가격은 판매점마다 달라 구속력이 적어 실제 소비자 가격에의 영향력이 적은 점, 당해 제품 판매로 인한 원고들의 이익이 미미한 점, 유통업체의 가격할인 요구로 합의된 가격이 준수되기 어려운 시장상황 등 시장구조 및 유통특성 등을 감안하여 임의적 조정과징금의 30%를 감액하여 다음〈표 8〉과 같이 부과과징금을 결정함

(Voting 8 omitted)

[Ground of recognition] Facts without dispute, Gap evidence 1-1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

(1) Non-existence of an agreement on price discount (common assertion)

In light of the following characteristics of the ice Products Market, the developments and result of the implementation of the First and Second Price Estimates in this case, and the effects expressed on the ice Products Market and the Plaintiffs due to price increase, the Plaintiffs merely decided and implemented the price increase under their own business judgment in a very intense competition, and do not raise the price by an agreement with other ices.

In addition, since ice products have a big impact on the consumer's choice as well as their prices, such as advertising, massage, image of trademark, distribution of sales stores, etc., the quantity of competition is complicated. Moreover, since ice products have the characteristics of being operated after a certain period of time, customers' movement to a remote area because they find a specific product and move to a remote area is not shaking, the influence of the distribution company, which is the main agent that determines the distribution of the sales place, is prevented. From the perspective of the distribution company, there is a tendency that the prices increase and the market share of the products leading the price increase, and there is a special feature that the market share of the products leading the price increase.

In the case of 2005, only the Plaintiff Barun, who first raised the price, increased the market share by 2.4%, and in the case of 2006, only the market share of the neglect which first increased the price was 8.3%. This shows the characteristics of the ice and the product market where the market share is reduced if the market share of the product seeking the price discount is increased and the competitor does not immediately increase the price by being accompanied by the competitor. If ice and 4 companies set the order of price discount, it is impossible to give a reasonable explanation as to why only Plaintiff Bari and his neglect were given an opportunity to increase the market share, and why Plaintiff Park Jong-jin and Sam River are able to accept the decline in the market share.

If there is an agreement on price increase, it is not necessary to increase the effort to improve quality or marketing (advertisement) cost due to the nature of the company that maximizes profit. However, in the case of Plaintiff Ringa, the advertising cost of KRW 1.028 billion in 2004 was increased to KRW 2.13 billion in 2005, and KRW 2.875 billion in 2006. In addition, in 2006, the content, packing material size, and massage, which are the main factors to determine the preference of consumers on Acklim, were changed except for Plaintiff Cang River.

In the process of the defendant's investigation on the price figures from around 2005 to the four companies, it is not possible to understand that the defendant again agreed on the price figures on March 6, 2006.

(2) An error in the calculation process of the penalty surcharge

㈎ 위반기간 산정의 오류(공통된 주장)

It is unreasonable for the Defendant to include the sales from January 28, 2005 to the date when the Plaintiffs actually raised the price, as the date of the first price discount, in which the increased price was applied, and then calculate the penalty surcharge on the same basis as the time when the increased price was applied. In addition, it is also erroneous that the Defendant’s violation continued until the date of deliberation on the instant case.

㈏ 장기계약제품으로 인한 매출액 제외(공통된 주장)

Since long-term contract products, such as military supplies, are entirely related to the price increase of the instant container products, it is unfair to include them in the relevant sales.

㈐ 매출할인 부분 제외(원고 삼강)

The calculation of the relevant sales revenue by excluding the discount portion of sales for the Plaintiff’s ice, and neglect, it is unreasonable to include the relevant sales revenue only in the Plaintiff’s Sam River.

㈑ 임원가중규정의 적용 불가(원고 롯데, 원고 빙그레)

The “director” referred to in Section IV. 3.2.5 of the penalty surcharge imposition notice should be limited to the registration director. However, it is illegal to calculate the arbitrary adjustment penalty surcharge by adding 10% to the mandatory adjustment penalty surcharge on the ground that the Plaintiff’s representative director, Nonparty 2 director, and Nonparty 3 did not have a registration director, and thus, he was involved in the act of violation.

(b) Related statutes;

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

(1) Whether there exists an agreement on price discount

㈎ 인정사실

① ice and four originals, originals, and cracks have been organized “The Council for the Normalization of Trade Order in Crackscream” at a nationwide level, and the ice and four mains have discussed about the plans for stabilizing the trade order in the ice and the market from time to time by the executives in charge of the business.

② Most of the instant containers maintained the same price continuously after raising the price from 500 to 700 won in around 1998. However, in ice and the market for 2004, a discount sale competition at the same superstore as a discount store was heated. In particular, in order for neglect to increase the rate of support for retail stores to increase the sales ratio of self-processed products, the rate of return has become worse due to the occurrence of competition between ice and ice manufacturing to cut off the retail store of other companies.

③ Of them, on January 13, 2005, Nonparty 1 sent the following e-mail (Evidence 9) as Nonparty 4’s manager’s negligence of competitor, Nonparty 5’s chief, Nonparty 3’s managing director, and Nonparty 6’s director of YGG, and Plaintiff ThG’s managing director.

본문내 포함된 표 시장비용, 수익를 개선하고자 가격인상, 중량감소 등 모든 수단를 강구해야 하는데 ... 거래처지원, 개설비률은 점점 증가되고, 40%를 넘기는 거시 보통이라니 큰일를 날것이 훤히 예측,, 보입니다. - 중 략 - 판매가 부진... 소비자 회전이 부진하드래도 200~300원를 한꺼번에 인상할 수 없을 것이니, 100씩이라도 가격인상를 시켜 가야겠읍니다. 그래야 인상폭이 적어서 충격를 덜 주고 잡음도 적게... 조금씩 개선해 나갈 수 있지 않을까요. 대리점도, 영업사원도, 점포도... 전부가 가격인상 하면 수익 나누어 갖자고 할 테니까...현실적으로 조금씩 인상해 가는 것이 현명할 것 같네요.

④ On January 14, 2005, Nonparty 1 sent an e-mail that Nonparty 5, the head of Nonparty 4, the director of Nonparty 7, the director of Nonparty 3, the managing director of Plaintiff Ye-gu, and the director of Nonparty 6 of Plaintiff Sam River, who had an annual meeting of January 18, 2005. After that, Nonparty 1 sent an e-mail that he had an annual meeting of January 18, 2005, and thereafter, took a meeting on January 28, 2005 by adjusting the schedule.

⑤ However, in the column of January 28, 2005 of Nonparty 1’s table (Evidence B No. 12) obtained by the Defendant in the course of investigating ice and 4 companies, the term “fourthr group” is indicated under the title “1. Public Administration No. 2. 4 of the market joint efforts of March 3, 200,” and the document stating “4. 8. 8. 8. 80 . . 80 . . . . . . . . . . . . . 1 of the Plaintiff ice Business Co., Ltd. (No. 14) was written at the beginning of 2005 by the head of the 5th . 1st 5th . 5th 2nd 5th 200 . 80 . 80 . 80 . 80 . 1st 5th 200 . 1st 2nd 5th 200 . . . 1st 2nd 33. 20. . . . .

⑥ 한편, 해태의 소외 7 이사, 원고 롯데의 소외 2 이사, 원고 빙그레의 소외 3 상무, 원고 삼강의 소외 6 이사 등은 2006. 3. 6. 12:00경 고양시 행주산성 소재 장원이라는 식당에서 모임을 가졌는데, 소외 2의 휴대용 업무수첩(을 제20호증)에는 “2006. 3. 6. 4사 모임”이라는 소제목 아래 “월드콘 800→1,000, 3사 OK, 빙그레 3사 ↑시 하겠다”라는 내용이 기재되어 있다.

7) In comparison with the sales amount of the instant container immediately after the increase in the price of the instant container with the previous year, the sales amount of the relevant month was reduced compared with the previous year or increased to the amount of the main tender in ice and 4 companies immediately after the increase in the price in 2005 and 2006, as seen in Table 9, the sales amount of May 1, 2005, when the price of the instant container was increased, increased to the amount of the sales amount of the instant container compared to the previous year by all the other companies at the time of the first price in 2005.

(Attachment 9 omitted)

8. In the cost composition of ice and products, the cost ratio of raw materials is high. The difference between products is mainly made in the case of a container product, but the price of raw materials is a large proportion of milk products, such as crude oil and sloping oil. The price fluctuation in dairy products and sugar has a direct impact on the manufacturing cost of ice and products. Some of the raw materials are affected by foreign exchange rate and international raw material price fluctuation because of the high dependence on imports. When examining the price trend of raw materials related to ice in 2003 through 205 and the manufacture of raw materials, there was a rise in only prices of milk, SMP (scil k mk pz sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp 10th below.

(Voting 10 omitted)

[Ground for recognition] The descriptions in subparagraphs B-1 through 5, 8 (including paper numbers), 9, 10 (including paper numbers), 11, 12, 14, 15, 18 through 20, 25 through 28, 32, 7 and 13-1, 2, and 13-2, and the purport of the whole pleadings

㈏ 판단

In light of the above facts, an agreement on collaborative acts refers to the communication between the business operators, and it includes cases where an implied agreement or implied agreement was reached, as well as the number of such agreements. ① The e-mail or business pocketbooks prepared by Nonparty 1, 2, etc., and the ice and the 2nd price increase in the company composed of Plaintiff 1 and the 4th price were found, and the 1 and the 2nd price increase in the 4th price was in line with the contents of the agreement. ② The 1 and the 205th price increase in the 4th price of the main raw materials of the instant containers, which would have been difficult to accept by the 0th price increase in the 4th price increase in the 4th price, and the 1st price increase in the 2nd price of the instant containers, which would have been difficult to view as the 1st price increase in the 2nd price and the 4th price increase in the 4th price of the instant raw materials. The 1st price increase in the 2nd price of the Plaintiff.

(2) Whether there is an error in the calculation process of penalty surcharges

㈎ 위반기간의 산정

The term "related sales", which serves as the basis for the calculation of penalty surcharges, refers to sales of related goods sold or purchased by the violating enterpriser during the period of the violation. The former Public Notice IV.1.c. (1) (c) of the penalty surcharges, provides that "in the case of applying Article 19(1) of the Act, the date on which the agreement to engage in the act falling under any of the subparagraphs of Article 19(1) of the Act is reached shall be deemed to be the starting date of the violation. With respect to the closing date of the violation, the date on which the agreement to engage in the unfair collaborative act is no longer reached shall be deemed to be the date on which the agreement to engage in the act is reached." Meanwhile, the plaintiffs did not complete the execution of the case after the execution of the first and second prices in this case by the agreement of the defendant after the execution of the first and second prices in this case. Thus, the defendant did not have any error in calculating the relevant sales from January 28, 2005 to March 14, 2007.

㈏ 장기계약제품으로 인한 매출액 포함 여부

The scope of products related to an unfair collaborative act, which is the basis for calculating a penalty surcharge, should be individually and specifically determined in consideration of the type, nature, transaction area, transaction counterpart, transaction stage, etc. of the products included in the agreement between the enterpriser who has conducted the unfair collaborative act (see Supreme Court Decision 2001Du10387, Jan. 10, 2003). In this case, where the contract for long-term supply, such as military payment, was concluded before the date of the above price agreement, the Plaintiff Ringle et al. entered into a contract for long-term supply, such as military payment, even before the date of the above price agreement, it was intended to enter into an amended contract to increase the price during the contract period or change the sales item to the increased price container (No. 30). Accordingly, the sales amount from the above long-term contract product should also be included in the above related sales. Accordingly, the

㈐ 매출할인 부분 제외(원고 삼강)

The Defendant asserts that the sales revenue was calculated by excluding the discount portion on sales with respect to the Plaintiff Sam River. However, it is not sufficient to acknowledge that the Defendant’s entry of No. 33,374,000,000, supra, as the relevant sales revenue in the Plaintiff Sam River, is the amount corresponding to the net sales amount except the sales discount amount, and there is no other evidence to acknowledge this otherwise (the statement of No. 25,26, based on each of the evidence No. 25, No. 26, Jan. 28, 2005 to Mar. 14, 207). Accordingly, this part of the Plaintiff’s assertion is with merit.

㈑ 고위 임원의 가담 여부

The former Penalty Surcharge Imposition Notice IV. 3.2.5 (5) provides that "if a person directly involved in an offense, the penalty surcharge may be increased by up to 10% for the director of the company or the senior executive of the company who committed the offense, the penalty surcharge may be increased by not more than 10%," and the issue of whether the director of the company, the non-party 1, the non-party 2, and the non-party 3 executive of the company, the non-party 1, the non-party

Article 2 subparag. 5 of the Fair Trade Act defines “executive officers” as “general partners, auditors, persons corresponding thereto, or commercial employees who deal with overall business of the main office or branch office, such as directors, representative directors, or managers. In applying the former penalty surcharge imposition notice enacted pursuant to the delegation of the Fair Trade Act and the Enforcement Decree thereof, unless otherwise provided in the above notice itself, the definition of the Fair Trade Act should be applied as it is, and the legal standard of the imposition of penalty surcharges, which constitutes infinite disposition, should be strictly interpreted in accordance with the language and text thereof. Thus, “director” in the above notice should be deemed to be limited to registered directors under the Commercial Act.

However, in this case, there is no evidence to prove that Nonparty 1, 2, and 3 constitutes a registration director under the Commercial Act or a more senior delegate, and thus, in calculating the voluntary adjustment penalty, the defendant's decision to add 10% of the mandatory adjustment penalty surcharge to 10% by applying Article 4.3. b. 5 of the above public notice, and the decision to impose penalty surcharge based on it is inevitable to regard that the decision to impose penalty surcharge was a deviation or abuse of discretionary authority. Accordingly, the plaintiff 1, 2, and 3's assertion in this part is with merit.

(3) Sub-determination

Therefore, the part of the corrective order of this case is legitimate, and the part of the penalty surcharge payment order is unlawful.

3. Conclusion

Therefore, among the plaintiffs' claims in this case, the part seeking the revocation of the penalty surcharge payment order in attached Table 1 Section 2 is justified, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Sung-sung (Presiding Judge)

(1) The Plaintiff Sam River asserts that this amount is KRW 28,826,00,00,000, but the evidence No. 25-1 (the report on the result of the agreed procedure execution) based on it is not from January 28, 2005, but from January 29, 2005, it cannot be deemed that the above amount is correct.