1. Article 19(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) prohibits two or more enterprisers from engaging in an unfair collaborative act to agree to engage in an act unfairly restricting competition. Here, agreement includes not only explicit agreement but also implied agreement. Thus, if enterprisers in the competition process divide the areas of bidding and decide the participants in each bidding field in advance, it can be deemed that there was an agreement to restrict competition among them.

In addition, even if a certain business operator wishes to participate in a competitive bidding, it can act as a competitive pressure on the other party. Thus, it is difficult to readily conclude that his/her intent to participate in the competitive bidding is denied or a competitive relationship is not established on the sole basis of the circumstance that a certain business operator is simply low in possibility of receiving contracts.

2. The lower court acknowledged the facts as indicated in its reasoning based on the adopted evidence, and, after publicly announcing a request to the Agency for Defense Development (hereinafter “the Agency”) for the proposal regarding the combat system and the research and development project of the small or medium sub-system system on February 12, 2009 (hereinafter “instant bidding”), imposed conditions on the combat system to completely prohibit technical cooperation with foreign enterprises and to achieve at least 70% of domestically produced products with the government’s approval in order to promote cooperation with foreign enterprises with the principle of localization. The Plaintiff failed to have the technical ability to independently conduct research and development projects on the system integrated bidding among the small or medium systems, and the Plaintiff was also unable to independently participate in the bidding in the relevant field due to lack of technical ability in the combat system, and thus, added the above conditions.