2. The term “the term “the term” means “the term” means “the term “the term” or “the term” means “the term” means “the term.

Fair Trade Commission (Attorney Lee Jae-hwan, Counsel for defendant-appellant)

o April 24, 2001

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The corrective order and penalty surcharge payment order issued by the defendant against the plaintiffs on November 19, 1998 shall be revoked, respectively.

1. Basic facts and circumstances of dispositions;

The following facts are either disputed between the parties or acknowledged by Gap evidence 1 to 2-2 by integrating the whole purport of the pleadings.

A. The plaintiffs are affiliates of "SK" (the sum of assets as of April 1, 1998 is composed of 29,278,45,000,000 won, all of which are 45 companies, and the main type of business is information and communication business, such as petroleum-related products, radio calling, and accelerator-phone services, including crude oil refining and treatment business. The main type of business is information and communication business, such as nuclear fuel-related products, radio calling, and accelerator-phone services, including crude oil refining and treatment business. The plaintiffs are affiliates of "SK" (which was amended by Act No. 5813, Feb. 5, 1999; hereinafter the "Fair Trade Act"), and the general status is as shown in Table 1.

Table 1> General Status of Plaintiffs (based on the end of 1997, unit: 00 million won)

In the name of the Plaintiff included in the main text, the title of the Plaintiff’s capital, 311 41,03 27,878 35,120 1,136 Es. 16,929 15,324 14,567 199

B. The Defendant, (1) purchased 50 billion won or 40 billion won at a discount rate of 1.5-8% or less than ordinary discount rates of 7 times between Plaintiff EF 1 and Plaintiff EF 2 (hereinafter referred to as “Plaintiff EF 1’s company name”)’s 198.1 to June 30 of the same year, through a specified money trust of 50 billion won (50 billion won) that was purchased by Nonparty EF 1 through the KF 2, 1998, 2000 won or 40 billion won, and 3.6 billion won or less than the average discount rate of 9.4 billion won from January 14, 1998 to June 30 of the same year, 198; 3.6 billion won from the 9.3rd KF 1 to the KF 2, 305-78% lower than the average discount rate of 9.1 to the KF 198.4 to the 197.194

2. The parties' assertion

As to the Defendant’s assertion that the instant disposition was lawful in accordance with the grounds and relevant statutes, the Plaintiffs asserted that their respective parts of the instant disposition were unlawful on the following grounds.

A. Plaintiff’s claim for the patent patent patent patent patent patent patent patent patent patent

(1) Improper discount rate: The defendant, based on the normal discount rate, set a discount rate for corporate bills issued by the non-party Samsung Securities, on the ground that KS circulation was not issued under similar conditions; the defendant set an weighted average discount rate for corporate bills issued by the non-party Samsung Securities in the table of interest rates for corporate bills issued by the non-party Samsung Securities; and (1) in the case of corporate bills issued by KS circulation, it cannot be said that such corporate bills are "ordinary interest rate" because they are separately determined by the purchaser according to the degree of credit determined and the environment of the gold market for the trading period. Meanwhile, since the credit rating of the Korean financial institution did not have credibility because it did not have the ability to evaluate corporate bills, and the credit rating of the non-party Samsung Securities cannot be set at the rate of interest for corporate bills issued by the company before and after the issuance of the relevant corporate bills, the average discount rate for corporate bills issued by the company cannot be set at the rate of interest rate of 1 week prior to and after the issuance of such bills, and thus, it cannot be set at the average discount rate of commercial papers within 3.

(2) In light of the enforcement decree, the actual transaction price should be remarkably higher or lower than the arm's length price for the act of unfair assistance. Since the criteria for determining the "reality" are not stipulated in the Fair Trade Act or the Enforcement Decree, it is reasonable to deem that the actual transaction price and the arm's length price should be clearly different from the actual transaction price and the arm's length price in light of the Corporate Tax Act (Article 18(1) and Article 40(1) of the Enforcement Decree of the same Act) or the Inheritance Tax and Gift Tax Act (Article 35 and Article 26 of the Enforcement Decree of the same Act), which is a similar Act and subordinate statutes, there is a significant difference between the actual transaction price and the arm's length price. However, even when calculating based on the defendant's assertion, it is less than 10% that the discount rate of the commercial paper of this case is less than 10%, and thus, it is not the abuse of discretionary power to make the unfair assistance with the difference of discount rate

(3) The illegality of the computation of the amount of support: KS distribution does not use the amount received from the discount of the instant commercial paper from the Plaintiff’s KS, and invests in the short-term financial product (MMF, MFA) at high interest rate as it is, so the amount of support shall be based on the profit accrued from investment in the short-term financial product as above.

(4) Degradation and abuse of discretionary power: even if Plaintiff Skcom had certain support during the process of purchasing the instant commercial paper, the order to publish the violation of the law and the penalty surcharge calculated by the Defendant is excessive, so the instant disposition is deviating from and abused by discretionary power.

B. The assertion of the case construction

(1) double punishment: between April 14, 1997 and September 19, 198, Plaintiff Sk Construction purchased the corporate bills of this case in the non-party Central Finance Co., Ltd. through the non-party Central Finance Co., Ltd., and the above three-party General Finance was no longer able to engage in the transaction as the business suspension of the above three-party Central Finance Co., Ltd., and the Defendant converted the purchase price of the corporate bills of this case into the loan of Jung Won on Jan. 9, 198. The Defendant decided August 5, 1998 and the above lending to Plaintiff Sk Construction Co., Ltd constitutes an unfair support. Thus, the Defendant issued a corrective order and a penalty surcharge payment order for the corporate bills of this case, not only new lending to Plaintiff Sk Construction, but also converted the purchase price of the corporate bills of this case into a loan only in the legal form, and as long as the Defendant first regulated the above corporate bills with the same legal interest as the unfair support act, it is unlawful as a double punishment.

(2) Improper to calculate the normal discount rate: The defendant takes a monthly average loan interest rate of a commercial bank announced by the Bank of Korea based on the normal discount rate, but on the same grounds as the above paragraph (a) (1), this cannot be said to be a normal rate, and thus, the disposition of this case based on such rate is unlawful.

(3) In the absence of substantialness: The difference between the discount rate that the Plaintiff’s construction purchased the instant corporate bills and the normal discount rate that the Defendant purchased on the grounds of the above A. (2) is less than 5%, and thus, it cannot be an unfair assistance act.

(4) Degradation and abuse of discretionary power: (a) during the construction of the Dok New Hotel Construction, Plaintiff Sk Construction purchased the instant corporate bills in the process of normalizing the operation of the Jungwon in order to receive the construction cost due to the failure of the owner of the building while the construction was being performed due to the suspension of construction of the said hotel; (b) as described in the above (c) in fact, the said heavy is subject to double punishment; and (c) Plaintiff Sk Construction’s operation continued due to the continuous progress of the operation of the said heavy group on June 28, 199; and (d) eventually Plaintiff Sk Construction’s merger of the said heavy group on June 28, 199. The instant disposition was deviates and abused from discretionary

3. Related statutes;

A. The Fair Trade Act

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

1. The term "business operator" means a person who runs a business falling under any of the following items. Officers, employees, agents, or other persons who engage in an act for the benefit of the business operator shall be deemed to be a business operator in the application of the provisions pertaining to the business operators' organization. (a) Manufacturing business; (b) Electricity, gas and water supply business; (c) construction business; (d) Do, retail and consumer goods repair business; (e) lodging and restaurant business; (f) financial and insurance business;

Article 23 (Prohibition of Unfair Trade Practices) (1) No enterpriser shall commit any act which falls under any of the following subparagraphs, and which is likely to impede fair trade (hereinafter referred to as "unfair trade practices"), or have an affiliated company or other enterprisers perform such act:

7. Unfairly supporting a person with a special interest or other companies by providing advanced payment, loans, human resources, real estate, securities, intangible property rights, etc. or by transacting under substantially favorable terms and conditions;

(2) Types of or criteria for unfair trade practices shall be prescribed by Presidential Decree.

Article 24 (Corrective Measures) The Fair Trade Commission may, when there exists an act of violating the provisions of Article 23 (1), order the enterpriser concerned to discontinue the unfair trade practices, to delete the pertinent provisions of the contract, to publish corrective advertisements, or to take other necessary corrective measures against the said act.

In the event of the occurrence of unfair trade practices in violation of the provisions of each subparagraph of Article 23 (1), the Fair Trade Commission may impose upon the relevant enterpriser a penalty surcharge not exceeding the amount obtained by multiplying the turnover determined by Presidential Decree by 2/100: Provided, That in the case of absence of the turnover, etc., a penalty surcharge of not exceeding 50 million won may be imposed.

B. Enforcement Decree of the Fair Trade Act

Article 36 (Designation of Unfair Trade Practices) (1) Types of or criteria for the unfair trade practices under Article 23 (2) of the Act shall be as shown in the annexed Table.

[Attachment]

10. Support for improper funds, assets, and human resources;

"Act assisting a person with a special interest or another company by providing advanced payment, loans, human resources, real estate, securities, intangible property rights, etc. to a person with a special interest or another company, or by transacting under substantially favorable terms" in Article 23 (1) 7 of the Act means an act falling under any of the following items:

(a) Unfair financial assistance;

An act of assisting a person with special interest or other companies by providing or trading funds, such as provisional payments or loans, for remarkably low or high prices, or by providing or trading on a conspicuous scale and providing excessive economic benefits.

4. Determination

A. The meaning of unfair assistance

However, the purpose of the Fair Trade Act is to prevent abuse of market-dominating positions and excessive concentration of economic power, to promote fair and free competition, to encourage creative business activities, to protect consumers, and to promote balanced development of the national economy (Article 1 of the Fair Trade Act). In particular, the prohibition of unfair support practices by stipulating unfair support practices in Article 23(1)7 of the Fair Trade Act as one type of unfair trade practices between affiliates of a large enterprise group is to prevent non-effective affiliates from hindering the attitude of non-effective affiliates by ensuring the “efficiency-free competitive advantage irrelevant to efficiency” and, rather, to unfairly lowering or decline independent competitors in the market. ② The creation of a situation that considers the management ability of affiliates of a competitor company to enter the market to prevent such unfair competition companies from entering the market, thereby impairing the general competitiveness of the large enterprise group and reducing the general competitiveness and distribution ability of the large enterprise group’s affiliates, and ultimately, to prevent the unfair competition function of the interested parties such as the result of the unfair competition from being exposed to the large enterprise group.

In light of the above legislative purpose and purport, the "act of providing support" under Article 23 (1) 7 of the Fair Trade Act refers to a case where the arm's length price for economic benefits provided directly or indirectly to the supporter is considerably higher than the arm's length price for economic benefits received from the supporter (including the case of free provision or free transfer) or where the transaction size is so significant that excessive economic benefits are provided to the supporter (see attached Table 10 of the Enforcement Decree of the Fair Trade Act and the "Guidelines for Examination of Unfair Support Act" 4). Whether such support act is unfair or not shall be determined depending on whether such act is likely to undermine fair and free competition by taking into account various circumstances such as the transaction status or legal relation of the transaction partner, the possibility of selecting the other party, the market situation of the business size, the purpose and effect of the act, and the characteristics and contents of the relevant laws and regulations (see Supreme Court Decision 96Nu9003 delivered on September 8, 198).

(b) Fact of recognition;

The following facts may be acknowledged in full view of the whole purport of the pleadings in each part of evidence, evidence No. 1-1-4 of evidence No. 1-2, witness Kim Sung, and testimony set forth in this subparagraph, unless there is no dispute between the parties or prior to it.

(1) As seen from January 23, 198 to June 30, 1998, Plaintiff Scom: (a) deposited KRW 50 billion in Hanil Bank; and (b) had Han Han Bank, a trustee, purchase 50 billion or 40 billion corporate bills in total at 17.1% or 20.5% through seven occasions during the period from January 23, 1998 to June 30, 199; and (c) provided KRW 1,06,163 in total.

Table 2> The current status of the CP purchase of S case distribution

The amount of 5.3. 5. 4. 6. 8. 16. 16. 8. 16. 4. 8. 1, 208. 1. 23. 208. 50 339.726 4. 500 4. 16. 19.7. 27. 27. 50 19. 8. 4. 16. 4. 5. 16. 4. 16. 5. 8. 4. 2. 4. 4. 4. 5. 2. 4. 4. 4. 7. 2. 4. 5, 208. 4. 5. 4. 7. 26. 7. 198 5. 4. 4. 5. 1985 1. 5. 4. 1985

1) Ordinary discount rate: there is no commercial paper issued under similar terms and conditions, and thus, Class A3 is applied among the table of the CP interest rate submitted by Samsung Securities (SK Distribution (State) CP credit class A3-)

2) Support amount: CP purchase amount, X interest rate (normal interest rate-actual purchase interest rate), X number number/365

(2) As seen in Table 3, Plaintiff Scom: (a) purchased directly between January 14, 1998 and June 30, 1998; (b) purchased CPs issued by Scom Construction as 17.4% or 20.8%; (c) purchased CPs issued by Scom Construction as an affiliated company from January 14, 1998 to June 30, 199; or (d) obtained 25 billion won in a specified money trust money deposited in Scom Bank; and (d) supported 1,567,316,000 won in total.

Table 3> The current status of purchase of Es. Construction CP

6. 3. 2. 4. 8. 2. 4. 4. 2. 4. 5 / 10. 6. 0.8 14. 14. 98 / 921 / 10.8 0 6.80 / 21,00 / 25,008 9. 10. 10. 391, 391. 391, 07 / 10. 20. 8. 20. 4. 20. 8. 1. 20. 3. 4. 5 /6. 20. 8. 4. 20. 8. 1, 200. 3. 8. 25. 20. 1, 2008 / 3. 9. 8. 3. 1, 2008 / 10. 7. 308. 20. 19. 3

1) Average discount rate: The weighted average discount rate of bills issued under similar conditions for one week before or after the date of issuance of the relevant bills.

2) Support amount: CP purchase amount, X interest rate (normal interest rate-actual purchase interest rate), X number number/365

(3) As seen in the following: (a) Plaintiff SK Construction deposited 8.3 billion won in the Samri Integrated Finance Co., Ltd. in advance; and (b) purchased commercial papers issued by 10 times in total between April 14, 1997 and January 9, 1998, and supported KRW 292,835,000 in total.

Table 4> The current status of purchase of Jungwon CP

- 13. 8. 2. 3. 4. 8. 2. 4. 8. 6. 1, 97. 4. 8. 2. 8. 1, 97. 4. 8. 2. 1, 97. 4. 8. 1, 97. 4. 8. 4. 1, 97. 4. 4. 8. 1, 97. 15. 15. 16. 16. 13. 42, 183 " 183. 6. 16. 3. 4. 16. 2, 97. 13. 8. 4. 2, 97. 4. 8. 2, 197; 4. 4. 5. 2, 197. 1. 18. 38. 2, 197

1) Since no loan has been made by the institution institution from the institution other than the instant case, the normal interest rate shall apply to the loan interest rate of a commercial bank announced by the Bank of Korea.

2) The number of days and the amount of support money as of June 2, 1997 were transferred to China as of June 2, 1997, the amount of support money shall be appropriated from June 2, 1997: the CP purchase amount X rate (normal interest rate-actual purchase rate) X number/365

C. Determination

(1) Determination of illegality of the plaintiffs' normal discount rate calculation: The meaning of normal market price compared to the actual market price cannot be uniformly discussed in determining the unfair assistance act. It is sufficient that there is sufficient standard of response to individually recognizing illegality according to the legislative purpose governing the above unfair assistance act according to the type, behavior, and degree of actual transaction. ① Since there is no issue of corporate bills issued by the plaintiff Scomcom on similar terms in accepting the corporate bills issued by Scomcom, the difference between the interest rate table for the corporate bills purchased by the plaintiff Scomcom, ② The difference between the interest rate table for the corporate bills purchased by the plaintiff Scomcom, ② the difference between the actual market price of the commercial papers before and after the issuance of them, ③ The difference between the normal interest rate for the corporate bills purchased by the plaintiff Scomcom and the actual market price of the commercial papers cannot be viewed as the difference between the actual market price of the plaintiff's loan and the actual market price of the commercial banks.

(2) Determination of the plaintiffs' assertion of lack of substantialness: Whether the act of assistance is significant is determined on the basis of the difference between the normal discount rate and the actual purchase discount rate, not on the uniform basis, but on the basis of the independent purchase discount rate of the Fair Trade Act, by comprehensively taking into account all the factors such as the market situation at the time of the act of assistance, the financial status of the applicant, the scale of assistance, and the specific contents of the act of assistance. In this case, in light of the above, it is sufficient to recognize the substantial nature of assistance in the purchase of the corporate bills of this case, considering that the plaintiffs purchased the corporate bills of this case over a large period of time due to a significant difference between the normal discount rate and the above, the above assertion by the plaintiffs is without merit.

(3) Determination of the illegality of the claim for the calculation of the amount of support for Plaintiff Ecom: The standard of calculation of the amount of support, which is the basis of the calculation of the amount of support, shall be the difference between the arm's length price and the actual price at the time of the support, and it shall not be based on the profit rate obtained by the supporter, as alleged by the above Plaintiff. Therefore, the above Plaintiff

(4) Determination as to the assertion of double punishment for Plaintiff KS Construction: The above Plaintiff’s purchase of corporate bills issued by the member of the central government of the instant case and then converted the purchase amount to the presidential government into a legal act with a single legal interest is difficult to view it as a legal act with a single legal interest. The Plaintiff’s assertion in this part is without merit.

(5) Determination on the plaintiffs' abuse of discretionary power: The Fair Trade Commission shall consider the administrative sanction or preventive restraint of the unfair support act to be achieved by the imposition of a penalty surcharge within the scope not exceeding a certain ratio of the sales amount, the amount of support amount (if it is difficult to calculate the amount of support or it is impossible to do so, 10/100 of the amount of support transaction), and it shall be interpreted that the penalty surcharge can be determined with discretion, taking into account the reasons under Article 55 (3) 1 of the Fair Trade Act. According to the above evidence, the defendant shall impose a penalty surcharge within the scope not exceeding the amount calculated by multiplying the sales amount determined by the Presidential Decree pursuant to Article 24-2 of the Fair Trade Act by 2/100, on the basis of the amount of support amount, and considering the contents and degree of support act, the period and frequency of support act, the effect of support, etc., the order of imposition of the penalty surcharge of this case among the disposition of this case can be acknowledged as an act within the scope of discretionary discretion, and there is no reason to recognize any abuse of discretionary discretion.

5. Conclusion

Therefore, the disposition of this case is not unlawful as alleged by the plaintiffs, and all of the claims of this case are dismissed. It is so decided as per Disposition.

Judges Lee Jong-chul (Presiding Judge)