(영문) 서울고등법원 2017.11.30. 선고 2017누53271 판결

The Defendant’s order to pay penalty surcharges specified in attached Form 2, which was issued to the Plaintiff under [Attachment 2] No. 2017-038 of January 26, 2017, is revoked.

Reasons

1. Facts of recognition;

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings

A. Status of the plaintiff, etc.

1) The Plaintiff, Korea Electric Cable Co., Ltd., KON Korea Co., Ltd., Gato Electric Cable Co., Ltd., LS Cable Co., Ltd., and Gowon Electric Co., Ltd. (hereinafter referred to as “Co., Ltd.” in the name of the company”) are the business operators under Article 2 subparag. 1 of the Monopoly Regulation and Fair Trade Act, which engage in the manufacture and sale of electric wires (hereinafter referred to as “Fair Trade Act”).

2) The general status of the Plaintiff et al. is as follows.

(For the end of 2015: 00,000 won, name)

A person shall be appointed.

(b) Tender for the purchase of cables for power of ordering KS construction (the tender in this case);

1) On March 6, 2013, KS construction conducted the instant bid to purchase electric cables and cables for the purpose of purchasing electric power cables and cables required for the domestic plant construction works conducted by KS construction. The KS construction traded the instant bidding and conducted a bid for only six additional bidding participants by registering the KON Korea, the Plaintiff, and the ELS Cable as additional bidding participants.

2) The KS Construction selected each different business entity as a successful bidder for electric power cables and cables, and conducted an annual unit price bid for the annual required quantity of electric power cables and cables, and selected each of them as a priority bidder and finally determined the successful bidder in consideration of the price, quality, payment period, etc. during the negotiation process.

3) As a result of the tender on March 11, 2013, the Korean Electric Cable, approximately KRW 19.2 billion for electric cables, and the KON Korea, which had been covered by approximately KRW 5.5 billion for electric cables, was awarded a successful bid in one order respectively, and the KON Korea entered into a contract with KON Korea for electric cables and KRW 17,89,96,440 for electric cables and KRW 17,89,96,40 for electric cables and KRW 5,500,257,361 for electric cables, respectively.

C. The agreement of six companies including the plaintiff (hereinafter referred to as "the collaborative act of this case")

1) In addition, the Korea Electric Cable, Gato Cable, and ELS Cable, which had been traded in the existing bid in the instant bidding, were expected to be engaged in the price competition among the business operators. Moreover, the Korea Electric Cable, Gato Cable, and ELS Cable, which had been traded in the existing bid, was anticipated to be sold if they were unable to be awarded a bid in the instant bidding, and there was a need to secure a new business partner, such as Kex Korea, the Plaintiff, and Gowon Electric Cable, which had been newly participating in the bidding, to improve the future sales. Accordingly, six companies, including the Plaintiff, etc., intended to prevent the low price of goods due to excessive price competition and distribute the goods in a stable manner through a quantity distribution agreement after the successful bidder and the successful bidder.

2) On March 6, 2013, after the public notice of the instant tender on March 6, 2013, the Korean Electric Cable A, D, KONC, NON Korea D, the Plaintiff E, and the member wireF decided to participate in the instant tender through an agreement to prevent the low-price caused by the competition in the instant tender and to ensure the stable distribution of the quantity.

3) After each of the group of officers meetings, the Korean Cable G, the Gaon Cable H, the ELS Cable I, the KONS Korea J, the Plaintiff’s K, and the Kuwon Cable L were gathered in the vicinity of the Sail Station, and discussed the successful bidder of the instant bidding, the Russian, and the bid price. However, the specific agreement was not determined.

4) The Plaintiff et al. discussed the continuous agreement through individual meetings and telephone liaison. The main electric cables were mainly discussed between the Korean Electric Cable and the Korean Electric Cable that actively expressed the intention of receiving orders, and the Korean Electric Cables were discussed between the KON Korea and the Korean Electric Cables. The Plaintiff et al. agreed that six electric cables including the Plaintiff et al. will be awarded a successful bid by KON Korea, and KON Korea will be awarded a successful bid, and the successful bidder will be allocated a successful bid in the same way as the remaining five business operators.

5) While the Plaintiff et al.’s individual agreement has been reached, on March 10, 2013, Gaon Cable B, around March 10, 2013, sent to the rest of the business operators a bid price for each of his own electric power cables and cables for the guidance. On March 11, 2013, the bidding date, the Korea Electric Cable and KON Korea (Korean Electric Cable and KON Korea are too high for the price set by the Gaon Cable and KON Korea). The remaining four persons, except for each price set by the Gaon Cable and KON Korea (the 19.2 billion won and 5.5 billion won, each bid price shall be reflected in the price set by the Gaon Cable and the Gaon Cable and the 19.5 billion won, each of which are the price set by the Ga on the bidding date)

6) On April 1, 2013, KON Korea and KON Korea entered into a contract for KRW 17,899,96,440,50, 500,257,361, respectively, with EON and KON Korea entered into a contract for KRW 17,89,96,440, 50,257,361. The latter electric wires ordered KRW 4,100,000 to the Plaintiff for the successful bid for electric cables, KRW 3,100,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00

D. The defendant's corrective order and penalty surcharge payment order

1) On the ground that the instant collaborative act constitutes Article 19(1)8 of the Fair Trade Act, the Defendant issued a corrective order and an order to pay penalty surcharges (hereinafter referred to as “instant order to pay penalty surcharges”) under Article 21, 22, and 55-3 of the Fair Trade Act, Article 61 and [Attachment 2] of the Enforcement Decree of the same Act, and public notice on the detailed criteria for imposition of penalty surcharges (amended by the Fair Trade Commission Notice No. 2016-22, Dec. 30, 2016; hereinafter referred to as “public notice of penalty surcharges”) on January 26, 2017.

2) The grounds for calculating the penalty surcharge of KRW 449,00,000 against the Plaintiff are as follows.

A) Relevant sales

Pursuant to Part IV.1.c. (1)(e)(1), the contract price (excluding value-added tax) entered into with the ordering person after being awarded a successful contract by six companies, including the Plaintiff, shall be each relevant sales.

A person shall be appointed.

B) Base rate

The instant bid is subject to the imposition rate of 6.0% in consideration of the fact that it is difficult to deem that the final contract price has been determined through negotiations with the KS construction, the place of the order, and that considerable damage has occurred to the other party to the transaction, by allowing KS construction, only six companies including the Plaintiff, etc., to participate in the bidding.

C) Calculation Criteria

The relevant sales shall be calculated by multiplying the standard rate for imposition by the relevant sales, but if a bidder fails to receive a successful tender, the penalty surcharge shall be reduced within the range of N-2 (N-2) in accordance with Section IV.1.c. (1)(e)(2) of the penalty surcharge.

A person shall be appointed.

(D) the first adjustment;

Since the Korean Cable takes measures twice in violation of the Act during the past three years and the aggregate of weight of the frequency of violation is six points, it shall be increased by 20% of the criteria for calculation according to the announcement of penalty surcharges IV.2.2.b.(1)(A), and the remaining five companies, including the plaintiff, etc., shall not separately adjust because there are no corresponding reasons for adjustment due to the frequency of violations.

(E) the second adjustment;

The six plaintiffs, including the plaintiff, consistently recognize the act from the investigation stage to the completion of deliberation by the commission, and actively cooperates in the investigation, such as submitting data that may help to determine illegality, making a statement, etc., the penalty surcharge notice IV.3.C.(3)(A) shall reduce 20% of the calculation criteria for the first adjustment.

(unit: source)

A person shall be appointed.

F) Determination of imposition penalty surcharges

The Korean Cable shall be 249% of the debt ratio and 2.84 times of the average of the same type of business (87.67%) in the annual business report in 2015 (18.5%). Since the net income is less than the net income and the second adjusted standard of calculation is a considerable amount than the earned surplus ( △△△486.5 billion), 50% of the second adjusted standard of calculation shall be reduced considering the actual ability to bear the burden.In accordance with the penalty surcharge IV.4.5%, the amount of less than one million won shall be discarded according to the penalty surcharge notice.

A person shall be appointed.

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

A. The plaintiff's assertion

Article 19(1) Subparagraph 1 and 3 of the Fair Trade Act, the essence of which is the "successful bidder's decision", is not the "tender collusion" under Article 19(1) Subparagraph 8 of the Fair Trade Act, but the "price determination and quantity allocation" under Article 19(1) Subparagraph 1 and 3 of the same Act. In particular, electric cables did not have a clear agreement with the successful bidder at the last time. Therefore, Article 19(1) Subparagraph 1 and 3 of the Fair Trade Act shall apply. As such, the relevant sales, which forms the basis for the order to pay a penalty, shall be calculated based on the actual sales of the plaintiff or related OEM contract amount (1,124,882,440 won) related to the instant collaborative act. However, even if the defendant can calculate the actual sales of six companies, he/she uniformly calculated the relevant sales based on the total contract amount, and imposes a penalty surcharge exceeding the profits actually acquired by the plaintiff. This is inconsistent with the defendant's existing decision on similar cases.

B. Determination

1) Articles 22 and 55-3(1) and (5) of the Fair Trade Act provide for the imposition of a penalty surcharge not exceeding 10/100 (2 billion won where there is no sales) by an enterpriser who has conducted an unfair collaborative act to the extent that it does not exceed the amount determined by the Presidential Decree (2 billion won where there is no sales). In imposing a penalty surcharge, the imposition of a penalty surcharge shall be determined by the Presidential Decree in consideration of the substance and degree of the offense, duration and frequency of the offense, and the size of profits acquired from the offense. According to the delegation, Article 9(1) and (5) of the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 24697, Aug. 27, 2013; hereinafter referred to as the "Enforcement Decree of the Fair Trade Act") provides for the imposition of a penalty surcharge not exceeding 1/100 of the sales amount of goods or services sold by the enterpriser who has conducted the unfair collaborative act (hereinafter referred to as the "tender related to the bidding price").

Article 19(1)3 and 8 of the Fair Trade Act, Article 22 of the Enforcement Decree of the Fair Trade Act, and Article 9(1) of the Enforcement Decree of the Fair Trade Act, where the agreement is reached to restrict the transaction of goods or the transaction of services in the bidding method in addition to the form, content, and system of an unfair collaborative act and the basis for imposing penalty surcharges thereon, the collaborative act under Article 19(1)3 of the Fair Trade Act is established as well as the collaborative act under Article 19(1)8 of the Fair Trade Act is also established. Article 9(1) proviso of the Enforcement Decree of the Fair Trade Act provides that contract amount can be calculated as related sales if the act of violation is "tenders and similar acts" without distinguishing the types of violations, and Article 9(1) proviso of the Enforcement Decree of the Fair Trade Act provides that the contract amount can be calculated as related sales if the defendant applied the bidding method under Article 19(1)8 of the Fair Trade Act as well as the bidding documentation under Article 19(1)3 of the Fair Trade Act.

2) Examining the following circumstances revealed in addition to the above facts and the purport of the entire pleading in light of the above legal principles, even if the collaborative act in this case constitutes an agreement on the distribution of price or quantity, the collaborative act in this case constitutes a bid collusion agreed and realized with the successful bidder in the bidding method, and the agreement on the distribution of quantity is merely a price for the role in the bidding in this case, and it does not exclude the nature of the bidding collusion. Thus, even if the Defendant calculated the pertinent sales based on the contract amount applicable to the bidding collusion and ordered the payment of the penalty surcharge in this case, it cannot be deemed that there was any error of law.

① The six companies, including the Plaintiff, participated in the instant collaborative act, which is a typical tendering act that unfairly restricts competition, by determining matters such as successful bidders, bid price, etc. in the bidding, rather than simply on the allocation of quantity. Even if the agreement on the price or the allocation of quantity was included in the instant collaborative act, the nature of the bidding agreement is not denied.

② The instant collaborative act excludes the possibility that a successful tenderer may be determined through substantial competition in the bid market, as it determines a successful tenderer in advance in the instant bid and implements an agreement by formally participating in the bidding based on it. Even if Article 19(1)1 and 3 of the Fair Trade Act applies both as the Plaintiff’s assertion, the application of Article 19(1)1 and 3 of the Fair Trade Act is not excluded. Therefore, the proviso to Article 9(1) of the Enforcement Decree of the Fair Trade Act can be applied to the calculation of the relevant sales amount, and the standards for imposing a penalty surcharge for the contract price shall also be imposed on the relevant

③ In a case where the substance is a collusion, the Plaintiff asserts that the precedents calculated only the amount awarded by each bidder as relevant sales should be followed even if the form of the bidding agreement is in existence. However, it is difficult to recognize that the administrative practice binding by the Plaintiff was established solely on the existence of individual resolutions cited by the Plaintiff, and there are many cases where the Defendant’s resolution on the bidding collusion plus all the contract amounts as relevant sales even in the case of bidding. Accordingly, the instant order on the payment of penalty surcharge does not seem to contravene the principle of proportionality or the principle of equality.

④ In calculating the relevant sales, the Defendant’s calculation of the contract amount that six companies including the Plaintiff, etc. entered into with the ordering company is governed by the relevant laws and regulations as above. Considering that the penalty surcharge is an administrative sanction imposed on the violation of the administrative sanction in order to realize the administrative purpose of suppressing the unfair collaborative act, the nature of the administrative sanction and the nature of restitution of unjust enrichment (see, e.g., Supreme Court Decisions 2002Du7456, Oct. 28, 2004; 2007Du3756, Sept. 25, 2008), the relevant sales that served as the basis for imposing the penalty surcharge are not necessarily limited to the scope of unjust enrichment caused by the unfair collaborative act.

5. Part IV.1.c. (1)(e)(i)(E)(2) of the penalty surcharge notice shall also impose a penalty surcharge on a project operator who has participated in a tender and has failed to obtain a successful bid, and may be reduced by prescribing that the penalty surcharge may be reduced within the limit of N-2/N if the number of persons are at least five. The defendant applied the above provision to reduce the bid to participate in the bidding and reflected the calculation of the

(6) A penalty surcharge of KRW 449,00,000 against the Plaintiff is not more than half of the actual sales (OEM amount for a large cable) claimed by the Plaintiff. The amount is not more than half of the actual sales (OEM amount for a large cable) compared to the degree of the Plaintiff’s violation, which is a ground for the imposition of the penalty surcharge, to the extent that the degree of the violation is to be balanced compared with the degree of the Plaintiff’s violation, which is a ground for the imposition of the penalty surcharge, and is contrary to the principle of proportionality or the

3. Conclusion

Therefore, since the order to pay the penalty surcharge of this case is lawful, the plaintiff's claim seeking revocation is dismissed as it is without merit. It is so decided as per Disposition.