The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. “Unfair collaborative act” prohibited under Article 19(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) is “agreement on an act of unfairly restricting competition” and “agreement” includes not only explicit agreement but also implied agreement. However, the essence of such agreement is that two or more enterprisers have contact with each other. As such, it cannot be deemed that there exists an external form consistent with the existence of “unfair collaborative act” listed in each subparagraph of the above provision, and there should be proof of circumstances to acknowledge the reciprocity of communication between the enterprisers.

(see, e.g., Supreme Court Decision 2012Du17421, Nov. 28, 2013). Over-point markets, when a competitor set the price, the other business entity is prepared to cope with the price in an appropriate way. In such a case, if a business entity deems that the reproduction of the price of a competitor is consistent with one’s own interest, it can lead to independent implementation without the express agreement or implied understanding with the competitor. As such, it continues for a considerable period of time to coincide with external shapes in which the price of a competitor product is identical or similar in the over-point market, and all these circumstances are recognized by the business entity.

In addition, it can not be recognized that there is an agreement on price determination unless there is an additional circumstance to prove that there is an explicit or implied communication between enterprisers in relation to price determination.

In addition, even if there was an agreement among competitors on the determination of price, the circumstances that a business entity is considered to have participated in such an agreement are limited, but the business entity is the market.