2010Du27110 Revocation of disposition of imposition of penalty surcharge

Samsung General Chemical Co., Ltd.

Samsung C&T Ltd.

Fair Trade Commission

Seoul High Court Decision 2008Nu23001 Decided October 27, 2010

March 29, 2012

All appeals are dismissed.

Costs of appeal shall be borne by each party.

The grounds of appeal are examined.

1. Judgment on the ground of appeal by Plaintiff Samsung General Chemical Company

A. On the first ground for appeal

In full view of Articles 6, 17, 22, 24-2, 28, 31-2, and 34-2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315, Dec. 31, 2004; hereinafter referred to as the "Fair Trade Act"), the Fair Trade Commission has discretion to determine whether to impose a penalty surcharge for a violation of the Act or the amount of a penalty surcharge for a violation of the Act within a specific scope provided for in the Fair Trade Act and the Enforcement Decree thereof, and thus, the Fair Trade Commission’s imposition of a penalty surcharge for a violator of the Act is discretionary action. However, if there are grounds such as misconception of the fact that serves as the basis for imposing a penalty surcharge in exercising such discretion, or violates the principle of proportionality and equality, it is unlawful as a deviation or abuse of discretionary power (see, e.g., Supreme Court Decisions 200Du6121, May 28, 2002; 200Du1601, Mar. 18, 2019).

The court below, after compiling the adopted evidence, found the facts as stated in its holding. The court below determined that, in light of the following facts: (a) to assume contingent liabilities of Hyundai Petroleum Chemical Co., Ltd. (hereinafter referred to as "Moni Petroleum Chemical"), the name of the company was changed from Hyundai Petroleum Chemical Co., Ltd. (hereinafter referred to as "Moni Petroleum Chemical"); (b) to bear penalty surcharges for violation of Hyundai Petroleum Chemical Co., Ltd. taking part in price collusion; (c) to support the business of Hyundai Petroleum Co., Ltd. and Hoho Petroleum Chemical Co., Ltd. taking over Hyundai Petroleum Chemical Co., Ltd. (hereinafter referred to as "Plaintiff Samsung Heavy Co., Ltd.") established the Plaintiff Samsung Heavy Co., Ltd. (hereinafter referred to as "Plaintiff Samsung Heavy Co., Ltd.") by investing all its business assets, etc., and without conducting business activities; (d) in the case of Plaintiff Samsung Heavy Co., Ltd., Ltd. (hereinafter referred to as "Co., Ltd.") and the Plaintiff Samsung Heavy Co., Ltd., Ltd., Ltd., it is hard to view that it violated the principle of proportionality and discretion.

In light of the above legal principles and records, although some of the reasoning of the court below is not appropriate, the conclusion of rejecting the plaintiff Samsung Samsung Heavy Chemical Claim on the grounds that it is difficult to deem the defendant to have abused or abused discretion in calculating the penalty surcharge in this case is justifiable, and there is no error of law by misunderstanding legal principles as to the calculation of penalty surcharge as otherwise alleged in the ground of appeal.

B. On the second ground for appeal

Article 22 of the Fair Trade Act and Article 9(1) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 18356, Apr. 1, 2004; hereinafter “Enforcement Decree of the Fair Trade Act”) provide that an enterpriser who has committed an unfair collaborative act shall impose a penalty surcharge within the extent not exceeding the amount obtained by multiplying the average turnover for the three business years immediately preceding, by 5/100. Here, “the immediately preceding three business years” refers to the three business years immediately preceding as of the end of the offense of the enterpriser, and it does not mean the three business years immediately preceding as at the time when the enterpriser is ordered to pay the penalty surcharge (see Supreme Court Decision 2010Du2548, Sept. 9, 2010).

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged facts as stated in the judgment, and determined that "the preceding three business years" under the proviso of Article 9 (1) of the Enforcement Decree of the Fair Trade Act means the three business years immediately preceding the date on which the enterpriser's violation ends. In light of the above legal principles and the records, the above judgment of the court below is just, and there is no violation of law as to the method of calculating

2. Judgment on the Defendant’s grounds of appeal

According to Article 22 of the Fair Trade Act and Articles 9(1) and 61(1) [Attachment 2] of the Enforcement Decree of the Fair Trade Act, in cases where an enterpriser jointly engages in an unfair collaborative act with another enterpriser, the Fair Trade Commission may impose upon the enterpriser a penalty surcharge calculated on the basis of the sales amount of the relevant goods or services during the period of violation. The scope of the relevant goods or services, which is the premise of the calculation of the sales amount, shall be determined individually and specifically by taking into account the type and nature of the goods or services included in the agreement between the enterpriser who jointly engaged in the unfair collaborative act, the kind and use of the goods or services, the possibility of substitution, the transaction area, the transaction counterpart, and the transaction stages (see, e.g., Supreme Court Decisions 2001Du10387, Jan. 10, 2003; 2008Du1835

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in the judgment, and determined that the plaintiffs agreed on the selling price, etc. of the protective film of this case, which is a special standard, with the Han Petroleum chemical, or that the agreement on selling price of the protective film of this case was not affected by the selling price of the protective film of this case. Thus, the court below determined that the protective film of this case, which is produced and supplied exclusively by the plaintiffs, does not constitute a product related to the agreement on selling price of the protective film of this case, should be excluded from the related sales amount.

In light of the above legal principles and records, the above judgment of the court below is just, and there are no errors in the misapprehension of legal principles as to the scope of sales, which is the premise for calculating the penalty surcharge, or in violation of the principle of free evaluation of evidence against logical and empirical rules

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon

Justices Jeon Soo-ahn

Justices Yang Chang-soo

Justices Kim Yong-deok