(영문) 서울고등법원 2016.6.30. 선고 2015누35057 판결

The Defendant’s corrective order and penalty surcharge payment order stated in attached Form 1, which was issued by the Decision No. 2014-203 on September 17, 2014, against the Plaintiff, shall be revoked.

Reasons

1. Basic facts and circumstances of dispositions;

A. Status of the plaintiff, etc.

Hyundai Construction Co., Ltd. (hereinafter referred to as the "Co., Ltd." is omitted in the name of the company), Treatment Construction, Samsung C&T Construction, Samsung C&S Construction, SS Construction, ZS Construction, Large Forest Industry Development, Hyundai Industrial Development (hereinafter referred to as the "seven large Construction Co., Ltd."), the Plaintiff, C&M global, Corra Global, Kcccing Industries, T&C Construction, T&C Construction, T&T Construction, T&T Construction, F&T Construction, T&T, T&T, T&T, T&T, Samsung Heavy Heavy, Samsung Heavy Heavy Industries, Hank-do Construction, Han River Construction, Handong Construction, Kukdong Construction, Macco Construction, Mack Construction, Scco Construction, Sck Construction, Sck Construction, Sck Industrial Development, and Han New Construction (hereinafter referred to as "28 companies, including the Plaintiff, etc."), which are a company engaging in construction business and prescribed by the former Monopoly Regulation and Fair Trade Act (amended by Act No. 1016, Mar. 22, 2016, 2010).

(b) Outline of the public construction project and the construction market for the railroad;

1) Bidding methods for domestic public construction are largely divided into ① separate bid for design and construction, ② joint bid for design and construction, ③ alternative bid.

(A) a separate tender for design and construction

The ordering authority is a traditional bid system that allows the completion of the design by concluding a contract with the designer and the construction work to be performed separately.The method of selecting successful bidder has a qualification examination system and the minimum successful bidder system. In general, in the case of public construction with an estimated price of less than 30 billion won, the qualification examination system and in the case of other public construction, the successful bidder shall be determined by the minimum successful bidder system.

B) a package tender for design and construction;

In other words, the ordering person shall enter into a contract with a single business operator and shall provide the business operator with all services such as financing, purchase of land, design, construction and operation of construction works.

In other words, among the types of work on the execution design prepared by the ordering agency, it is permissible to perform the construction work by a method that does not exceed the construction period, based on the new construction method, new technology, air reduction, etc., which has the function and effect equal to or higher than the original design without changing the basic policy, and reflects the new construction method, new technology, and air reduction, etc., which have the same function as or more than the original design.

2) The scale of the domestic market for construction works in 2009 is about 54.1,48.5 billion won. Among them, the size of the railroad market was about 6.6 billion won and about 12.4% in proportion. Meanwhile, the proportion of the total amount of 28 construction companies, including the Plaintiff, to the total amount of 209 construction companies was about 9.89% in the case of 2009, 100% in the case of 2010, and 98.76% in the case of 2011.

1) Characteristics of construction works on the south-west high-speed rail

Construction works on the high-speed high-speed railroads are large-scale national government-owned projects with project cost of KRW 8.352.9 billion promoted to form a axis for traffic and life as a large-scale local network in Korea, along with the construction works on the high-speed rail with the total length of 184.534 km to link the transmission, factory owners, Doksan, Jung-Eup and Gwangju.

2. Current status of bids for construction works for a new high-speed rail on South and North Korea high-speed rail;

The 1-1 sections and 3-2 sections are divided into 19 sections. The 1-1 sections and 3-2 sections are the joint design and construction bidding method; the 1-2 sections, 1-4 sections, 2-3 sections and 4-2 sections are the alternative bidding method; the remaining 13 sections (hereinafter referred to as the “instant 13 sections”) are the separate design and construction bidding method; the bid price of the said 19 sections is the total amount of KRW 3.956 billion, and the total amount of the bid price of the said 13 sections is approximately KRW 2.489 billion.8 billion.

The 13 Construction Works in the instant case (hereinafter referred to as the "Construction Works in the instant case") divided into five sections and eight sections, and ordered two times. The bidding schedule, the bidding result by section, and the status of the joint supply and demand organization of successful bidders are as follows:

A person shall be appointed.

(d) Collaborative acts committed by 28 companies, including the plaintiff;

1) Agreement on the division of sections by seven large constructors

From June 7, 2009 to July 31, 2009, the first announcement date of tender (the date of July 31, 2009), 24 construction workers who are in charge of the business of seven large construction companies were discussed several times. During July of the same year, 24 construction workers who can participate in the instant construction project were classified into three groups based on the results of railroad construction works and the order of appraisal of execution capacity, etc., and assigned three sections to each group, and the prospective bidders for 13 construction sections were selected by drawing each group.

A person shall be appointed.

(ii) the participation in the agreement on the division of sections and the selection of the successful bidder for the 7 large construction companies and 14 construction companies;

On July 31, 2009, 7 large construction companies agreed on the division of construction sections, and then asked 17 companies, such as B and C Group, to notify them by wire, and whether they will be present. Of the 17 companies belonging to B and C Group, 14 companies, excluding 14 companies, including 14 companies (hereinafter referred to as “14 companies”) were to participate in the first public announcement date of July 31, 2009. 21 companies, including the Plaintiff who agreed on the plan for the division of construction sections (7 large construction companies + 14 construction companies), including the Plaintiff, etc., who agreed on the plan for the division of construction sections, were selected by lots for each group around the end of July 2009. The agreement by the Plaintiff, etc., including the Plaintiff, etc., was reached as follows.

A person shall be appointed.

3) Agreement between the successful bidder for each section and the tender participant.

Although there was an agreement on the division of sections and the successful bidder for each construction section by the plaintiff et al., the formal bidder had not yet been determined, as a result of the registration of the preliminary examination of qualifications for participation in bidding ("PPP Q Q Q examination"), the successful bidder for each construction section is expected to participate in the bidding of this case. The successful bidder for each construction section requested that the successful bidder for each construction section participate formally in the bid so that he/she can be awarded a successful bid, and the successful bidder for each construction section other than the successful bidder for each construction section was accepted.

(iv) agreement on the bid price of the prospective bidders for each construction section.

7 Large Construction Companies secured appropriate profits from each construction section, but agreed to determine the bid price in order to eliminate potential questions such as bid bid bid bid bid bid bid bid questions in advance when leaving the bid price to 13 successful bidders. On September 1, 2009, 7 Large Construction Companies set the bid bid rate in 76% compared to the design price after the site site consultations for the first bidding of the instant construction project, and notified the other successful bidders.

5) Implementation of agreements

The successful bidder determined the bid price on or before the date of the tender, three to four days prior to the date of the tender, and notified the participants of the bid by wire, or by storing and directly transmitting it in a computer storage medium ( CDs and USBs). They implemented the agreement by the successful bidder's bidding price.

E. The defendant's disposition

1) On September 17, 2014, the Defendant issued a corrective order and a penalty surcharge payment order to the Plaintiff on the ground that 28 companies, including the Plaintiff, constituted an unfair collaborative act under Article 19(1)3 and 8 of the Fair Trade Act (hereinafter “instant collaborative act”).

2) The Defendant calculated the penalty surcharge against the Plaintiff in accordance with Articles 22 and 55-3 of the Fair Trade Act, Article 61 and [Attachment Table 2] of the former Public Notice (amended by Defendant Public Notice No. 2010-9, Oct. 20, 2010; hereinafter “Public Notice of Penalty Surcharge”) as follows.

A) Basic penalty surcharges

(1) Relevant sales

The relevant sales amount shall be KRW 2,265,196,00,000, which is the sum of the contract amount of KRW 181,960,00,000 for the 4-4 Section awarded by the Plaintiff and the contract amount of KRW 2,083,236,00,00 for the instant 12 Section.

(2) Standard imposition rate

In light of the content and ripple effect of the collaborative act in this case, the standard rate of imposition of 7-10% shall apply in accordance with the provisions of subparagraph (a) of Article 4.1.1.c. (1) of the Public Notice of the Penalty Surcharge IV, considering the following factors: (a) the collaborative act in this case constitutes a 'major violation'; (b) the degree of the gravity of the act in this case constitutes 'major violation'; (c) the 7-10% standard rate of imposition shall apply in accordance with the provisions of subparagraph (a); (d) the companies eligible to pass the 1st construction project in this case

However, with respect to the part in which the plaintiff participated, the imposition standard rate of 3.5% shall apply in accordance with the provisions of Section IV.1.c. (1)(e)(2) of the penalty surcharge notice.

(3) Basic penalty surcharges

The basic penalty surcharge shall be determined by multiplying the relevant sales by the base rate for imposition as follows:

A person shall be appointed.

(b)the primary adjustment calculation criteria by an element of action;

The above basic penalty surcharge shall be maintained as the first adjustment criteria because there is no ground for adjustment by the elements of action against the plaintiff.

C) The second adjustment calculation criteria based on the elements of the actor

In consideration of the fact that the Plaintiff consistently recognized the fact of the act from the examination stage to the completion of the deliberation by the Committee, and actively cooperates in the investigation, such as submitting data or making a statement that may help the judgment of illegality, 20% of the first adjustment criteria shall be reduced.

A person shall be appointed.

D) Determination of imposition penalty surcharges

Considering the fact that the portion of the Plaintiff’s participation in the bid price is larger than the successful bid price in the relevant sales amount, 10% of the secondary adjustment criteria shall be reduced, and 50% of the secondary adjustment criteria shall be reduced considering the fact that the average amount of net income for the three years immediately preceding the date of deliberation on the Plaintiff’s financial statement is less than the average amount of net income for the three years immediately preceding the date of deliberation on the Plaintiff’s financial statement. Meanwhile, in consideration of the Plaintiff’s participation in the bid by organizing a joint supply and demand organization, 10% of the secondary adjustment criteria shall be additionally reduced for the portion of the Plaintiff’s successful bid, and the construction market is significantly decreasing due to the aggravation of the recent competition, 10% of the secondary adjustment criteria shall be reduced. The final

A person shall be appointed.

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Whether the corrective order of this case is lawful

A. The plaintiff's assertion 4)

The requirements for qualification for participation in the instant construction project were strict, and the number of construction companies allowed to participate from the beginning was limited, and there is no restriction on competition or extremely limited, due to the limitation of competition from the beginning due to one company's bid price system, and the adequacy of bid amount.

B. Determination

1) Whether a collaborative act restricts competition should be determined individually by examining whether the collaborative act affects or is likely to affect the determination of price, quantity, quality, other terms and conditions of trading, etc., by taking into account various circumstances, including the characteristics of the relevant product, consumers’ standard for choosing products, and the impact of the relevant act on the market and enterprisers on the competition. Meanwhile, the act of enterprisers’ joint determination or alteration of price causes or is likely to affect free pricing to a certain extent according to their intent by reducing price competition within the scope of price competition. Thus, such collaborative act of enterprisers is deemed unfair, barring special circumstances (see, e.g., Supreme Court Decision 2009Du7912, Apr. 14, 2011).

2) In full view of the facts acknowledged earlier in light of the aforementioned legal principles, the evidence presented earlier, and the following circumstances revealed by the purport of the entire pleadings, it is reasonable to view that the instant collaborative act constitutes an act unfairly restricting competition in the 13 construction sections bidding. Accordingly, the Plaintiff’s assertion on this part is rejected.

A) The instant collaborative act: ① the basic agreement on the division of construction sections ? ② the participation in the agreement on the division of construction sections ? ② the participation of the instant 14 construction companies in the agreement on the division of construction sections ? ③ the participation of the 21 construction companies, including the Plaintiff, etc. among the construction companies that became the 13 construction companies, the participation in the agreement on the division of construction sections and the successful bidder’s agreement on the construction sections ? ⑤ the additional participation of the 28 construction companies, including the Plaintiff, etc., who did not participate in the agreement on the division of the said sections and the successful bidder’s agreement on the bid price ? The agreement was completed in the order of 28 construction companies, including the Plaintiff, and the construction companies qualified to participate in the instant 13 construction construction companies. The purpose of the instant collaborative act was substantially damaged by the extinguishment of competition in the bidding itself.

B) The instant collaborative act does not have any other intent except for the purpose of creating stable profits by restricting competition among bidders. It appears that the average bid price ratio of the instant construction project tender appears to be higher than 73%, which is the average bid price ratio of the entire public sector, in 2009, higher than 78.5%, which is the average bid price ratio of the entire public sector’s lowest bid price bid in 2009.

C) In the case of the instant construction project tender, the construction performance of the instant construction project was strictly required, and the number of construction companies allowed to participate from the beginning was limited, and the competition was limited to a certain extent due to the one company’s bid price scheme, the bid bid price scheme, and the adequacy review of bid prices. However, such circumstance alone cannot be deemed as a minor restriction on competition of the instant collaborative act. Furthermore, the evidence submitted by the Plaintiff alone alone is insufficient to recognize that the instant collaborative act was promoted, or that the overall economy was promoted, and there is no other evidence to acknowledge otherwise.

3. Whether the instant order to pay penalty surcharge is lawful

A. The plaintiff's assertion

1) Violation of the principle of proportionality

As examined below, the extent of restriction on competition order due to the collaborative act of this case is not limited, while the disadvantage suffered by the plaintiff due to the order to pay the penalty surcharge of this case is enormous, so the order to pay the penalty surcharge of this case violates the principle of proportionality.

A) The extent of restriction on competition order due to the instant collaborative act is minor.

The number of construction companies allowed to participate from the beginning was limited, and the bid price of the instant construction project is limited from the beginning due to one company's bid price system, and the evaluation of adequacy of bid price, and thus, competition is limited from the beginning.

B) The Plaintiff’s disadvantage caused by the instant penalty surcharge payment order is enormous.

(1) The Plaintiff was engaged in the instant collaborative act led by 7 large constructors as a major company. The Defendant did not consider all the grounds for mitigation in calculating the penalty surcharge against the Plaintiff.

(2) The sales amount actually earned by the Plaintiff from the instant collaborative act is KRW 90,980,000,000, which is the amount equivalent to 50% of the Plaintiff’s share in the Plaintiff’s share in the joint venture, which is the contract amount of KRW 4-4 Section awarded by the Plaintiff. However, the Defendant calculated the pertinent sales amount at KRW 2,65,196,00,000,000,000,000, which is the amount equivalent to 50% of the Plaintiff’s share in the Plaintiff’s share in the joint venture. However, the Defendant calculated the pertinent sales amount by adding the entire contract amount of the 12 sections participating by the Plaintiff as well as the 4-4 Section, as well as the entire contract amount of the 12 sections participating by the Plaintiff. However, the “contract amount” under the proviso of Article 9(1) of the Enforcement Decree of the Fair Trade Act, which is the authorized Act, is interpreted as “amount corresponding to the actual sales amount generated by the Plaintiff.” Accordingly, regardless of the actual sales amount generated by the Plaintiff, is in violation of discretionary authority.

(3) The Defendant did not fully reflect the Plaintiff’s actual ability to bear the burden and the recent construction competition in the process of determining the penalty surcharge.

2) Violation of the principle of equality

A) Most pure scrapers who were not awarded a successful tender in the instant construction project tender were to obtain significant benefits by participating in the relevant tender as a hub of a joint contractor. Although there is no specific difference between the Plaintiff and the said scrapers, the Defendant treated the Plaintiff and the said scrapers differently without reasonable grounds. In the process of calculating the basic penalty, the Defendant applied the imposition rate of 7% to the 13 successful bidders, including the Plaintiff, and the imposition rate of 3.5% to the pure scrapers, respectively, and the imposition rate of 3.5% to the Plaintiff at the stage of determining the imposition of the penalty surcharge, taking into account the fact that there is a large portion of the decline arising from the participation in the relevant sales in the relevant process of determining the imposition of the penalty surcharge, the amount of 30% of the secondary adjustment calculation criteria was reduced for pure scrapers, while with respect to the 13 successful bidders, including the Plaintiff, limited to 10% of the secondary adjustment calculation criteria for their participation in the part of the successful bidders including the Plaintiff.

B) The Defendant mitigated 20% of the first adjustment calculation criteria on the ground of cooperation in investigation with the Plaintiff, while the Defendant applied 30% mitigation rate in other cases.

B. Relevant provisions

Attached Form 2 is as shown in the relevant statutes.

C. Determination

1) Legal principles

The Defendant has discretion as to whether to impose penalty surcharges on a violation of the Fair Trade Act and to determine the amount of penalty surcharges within a specific scope prescribed by the Fair Trade Act when imposing penalty surcharges. However, if the Defendant erred by misapprehending the fact that served as the basis for imposing penalty surcharges or violates the principle of proportionality and equality while exercising such discretion, it constitutes a deviation or abuse of discretionary power (see, e.g., Supreme Court Decision 2012Du1773, Nov. 28, 2013). Meanwhile, the Defendant bears the burden of proof as to the deviation or abuse of discretionary power imposed by an administrative agency in carrying out discretion.

2) Violation of the principle of proportionality

In full view of the aforementioned facts and the evidence and the purport of the entire pleadings as seen earlier, it is difficult to deem that the evidence submitted by the Plaintiff alone violates the relevant statutes or the principle of proportionality. Accordingly, the Plaintiff’s assertion on this part is rejected.

A) As to the assertion that the degree of restriction on competition of the instant collaborative act is minor

In light of the above 2. B. circumstances, the instant construction project is a large-scale national project, which has a significant impact on the national finance. The instant collaborative act is so-called speculative collaborative act that 28 business entities, including the Plaintiff, etc., participate in the instant collaborative act by dividing the construction section and setting the bid price in advance, and has a significant effect of restricting competition in that all of the 28 business entities, including the Plaintiff, etc., including the Plaintiff, participated in the instant collaborative act. The instant collaborative act is justifiable in light of the fact that the successful bidder as determined by 28 business entities including the Plaintiff, etc., actually has been awarded the successful bid for each construction section, and the average bid price rate is more than 78.5% higher than the average bid price rate for the entire public sector in 209, and it appears that the amount of unjust enrichment from the instant collaborative act is also smaller than 73% higher than the average bid price for the entire public sector in 209.

B) As to the assertion that the Plaintiff’s disadvantage due to the instant penalty surcharge payment order is significant

(1) The plaintiff did not consider that he participated in the collaborative act of this case.

Section IV.3.3.3.C. (2) of the penalty surcharge notice provides that "If it is evident that a number of enterprisers engaged in a simple or abstract act in violation of the situation in which the enterprisers are involved, or it has participated solely by solicitation or representation of another enterpriser or has participated inevitably by deception or coercion, it may be reduced to up to 30/100 of the penalty surcharge for compulsory adjustment, regardless of his/her own interest," while the proviso provides that "the basic penalty surcharge for the reason of the decline in bid collusion shall not be applied to the participating enterprisers whose basic penalty surcharge has been reduced by more than 30/10 of the penalty surcharge for the reason of the decline in bid collusion."

First, pursuant to Section IV.1.c. (1)(e)(2) of the penalty surcharge notice, the Defendant reduced 50% of the basic penalty surcharge on this part by applying the imposition standard rate to 3.5% compared to the successful bidder, taking into account the circumstances in which the Plaintiff participated in the 12 construction sections bidding. According to the foregoing provision, there is no room to reduce the part of the Plaintiff’s participation in the bid by reason of simple participation. Next, there is no evidence to acknowledge that the Plaintiff unilaterally recommended or forced the Plaintiff to participate in the collaborative act of this case from 7 large construction companies. Rather, the Plaintiff participated in the 7 large construction sections division agreement, and was selected as the successful bidder of Section 4-4 of the instant construction sections, and the Plaintiff’s participation in the 4-4 construction sections, and the bid price was determined to be reflected in the bid in the relevant construction sections, and thus, it is difficult to view that the Plaintiff’s participation in the construction of this case and the calculation of the amount of the penalty surcharge by itself is an obvious difference between the Plaintiff’s participation and the instant construction criteria.

(2) The assertion that the calculation of the relevant sales amount is unlawful

Articles 22 and 55-3(1) and (5) of the Fair Trade Act provide that a penalty surcharge of up to 10/100 may be imposed on an enterpriser who has committed an unfair collaborative act (up to 2 billion won in the absence of sales) by 20/100 of the sales amount determined by the Presidential Decree, in order to deprive the enterpriser of the economic benefits acquired by the unfair collaborative act and to realize the administrative purpose of preventing the unfair collaborative act. In addition, Article 9(1) and (5) of the Enforcement Decree of the Fair Trade Act delegates that the criteria for imposing a penalty surcharge of up to 20 billion won in consideration of the substance and degree of the act of violation, duration, and frequency of the act of violation, and the size of profits acquired by the act of violation shall be determined as the enforcement Decree of the Fair Trade Act. In addition, Article 9(2) of the Enforcement Decree of the Fair Trade Act provides that the criteria for imposing a penalty surcharge of up to 10/100 of the total amount of sales amount of goods or services sold in a particular business area during the period of violation.

In addition to the above legal principles, in calculating the relevant sales, there is no error of law including the contract amount of the 4-4 construction section in which the plaintiff participated as a successful bidder, as well as the contract amount of the 12 construction sections in which the plaintiff participated as a successful bidder.

(A) According to the instant collaborative act, the Plaintiff participated in the 4-4 construction section bidding as a successful bidder, and the 12 construction section bidding as a successful bidder. As seen earlier, the contract price, which forms the basis for calculating the relevant sales, refers to the contract price of the pertinent bidding, not the contract price of a specific business entity, which is not the contract price of the relevant business entity. As long as the Plaintiff participated in the instant collaborative act concerning 12 construction sections, the contract price of each of the said construction sections is not the actual sales price of the Plaintiff, and it does not

(B) In addition, in order to realize the administrative purpose, which is the suppression of unfair collaborative acts, the imposition of penalty surcharges by adding the elements of restitution of unjust enrichment to the basic nature of administrative sanctions imposing sanctions against such act of violation (see Supreme Court Decision 2002Du7456, Oct. 28, 2004), it cannot be deemed that the Plaintiff calculated the contract price of 12 sections participating in the bid price as well as the contract price of 4-4 sections awarded by the Plaintiff as the contract price of 12 sections, which the Plaintiff participated in the bid price, as the relevant sales amount, does not constitute excessive and overlapping sanctions.

(C) It cannot be said that there is no direct benefit from the collusion, but there is no economic benefit therefrom. Moreover, it cannot be said that there is no validity on the ground that it is a contract amount that reflects the scale of the tender at issue, which is the subject of the violation of the standards for imposing penalty surcharges on the said entity (see Supreme Court Decision 2002Du5627, Nov. 12, 2004).

(D) The Defendant’s decision-making cases cited by the Plaintiff are judged to be different from this case’s specific facts, and the evidence alone presented by the Plaintiff is insufficient to recognize that the Defendant, without reasonable grounds, arbitrarily treated the business operators who committed an act identical or similar to the instant collaborative act and the Plaintiff.

(3) The Plaintiff’s assertion that it did not consider the Plaintiff’s realistic ability and recent construction games.

(1) Section 4.4.1(a) of the penalty surcharge notice provides that "If it is deemed that a voluntary adjustment penalty surcharge is remarkably excessive compared to the extent necessary to recover unjust enrichment, prevent a violation of the law, or achieve the purpose of sanctions, it may be reduced by up to 50/100 of the voluntary adjustment penalty surcharge, in light of the ripple effect of the violation which is not fully considered in calculating the discretionary adjustment penalty surcharge, specific economic situation, economic or financial interest of the relevant business operator, structural characteristics of the relevant business operator, and the structure and objective conditions of the market or industry such as the real payment ability in a particular social situation, etc."

The Defendant reduced 50% of the criteria for the second adjustment by taking into account the fact that the weighted average net income for the three years immediately preceding the date of deliberation in the stage of determining the penalty surcharge imposed upon the Plaintiff, and that the construction market has been significantly deteriorated due to the aggravation of the competition, the Defendant additionally reduced 10% of the criteria for the second adjustment by taking into account the fact that the construction market has been significantly decreasing. The Defendant appears to have given maximum mitigation within the scope of discretion by taking into account the Plaintiff’s ability to bear the penalty surcharge and the market conditions in accordance with the notice of penalty surcharge imposed upon the Plaintiff, which was in force at the time of the instant collaborative act. As such, it cannot be deemed that the Defendant violated the principle of proportionality, and there is deviation from and abuse of discretionary power.

3) Violation of the principle of equality

In full view of the following circumstances revealed through the facts acknowledged earlier and the purport of the entire pleadings, it is difficult to deem that the evidence submitted by the Plaintiff alone violates the principle of equality in the disposition of this case. Accordingly, the Plaintiff’s assertion on this part is rejected.

A) As to the assertion that pure storys participating in the 13 successful bidders, including the plaintiff, etc., and joint contractors and joint contractors, have been treated differently

(1) In return for the Plaintiff’s participation in the instant collaborative act, the Plaintiff obtained a considerable economic benefit, such as receiving a successful bid of the construction section from the contract price of KRW 4-4 up to KRW 181,960,000,00, as a main contractor (50% of the Plaintiff’s share) in return for the Plaintiff’s participation in the instant collaborative act. On the other hand, the evidence submitted alone is insufficient to recognize that the Plaintiff

(2) There is a clear difference in the scale of unjust enrichment between the successful bidder and the joint contractor for the instant 13 sections. Furthermore, in calculating the penalty surcharge against the plaintiff who won the bid for the instant 13 sections, the defendant applied the imposition standard rate to 3.5% against the plaintiff who won the bid for the instant 13 sections by applying the imposition standard rate to the half of the successful bidder who won the bid for the instant 13 sections. Accordingly, taking into account the difference in the scale of unjust enrichment between the successful bidder and the joint contractor for the instant 13 sections, the defendant applied the reduction rate of the second adjustment standard to pure 13 sections as the joint contractor and the joint contractor for the instant 13 sections, the reduction rate of the second adjustment basis to the successful bidder for the instant 13 sections is sufficiently acceptable.

B) As to the assertion that discriminatory treatment was made in mitigation on the grounds of investigation cooperation

Section IV.3.3.c. (3) of the penalty surcharge notice provides that if an investigation is actively cooperative, the calculation criteria for the first adjustment may be reduced to up to 20/100. The Defendant’s mitigation of 20% of the first adjustment calculation criteria against the Plaintiff on the ground of investigation cooperation can immediately be deemed to have been reduced to the maximum extent within its own discretion, and the evidence submitted by the Plaintiff alone does not violate the equity with other matters.

4. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges Yoon Sung-won

Judges Yu Hun-tae

Judges Kim Yong- For

Note tin

1) In the instant construction project, the Korea Rail Network Authority recommended the participation of 10% by regional joint contractors.

2) Section 5-1 Section is a section passing through the Donnam-do, and the gold industry, the location of which is the Donnam-do project, is a joint contractor which is a representative and has the qualification of the local enterprise.

3) A system under which the number of construction sections that can be awarded by one construction company cannot exceed two, and the bid of the instant construction project was conducted twice, and the bidder is entitled to award one construction section on each occasion, so the maximum number of construction sections available for winning the contract would be two.

4) While seeking the revocation of the instant corrective order, the Plaintiff did not assert any allegation as to the grounds for illegality. However, the Plaintiff asserted that the instant collaborative act does not practically restrict competition while seeking the revocation of the instant corrective order. Accordingly, this part of the claim is asserted as to the grounds for illegality of the corrective order.