Suwon Construction (Attorney Lee Im-soo et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm LLC, Attorneys O Nam-sung et al., Counsel for defendant)

February 29, 2012

1. The Defendant’s corrective orders and penalty surcharge payment orders written in the attached Form No. 2011-92 of the Decision on July 4, 2011 are revoked.

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

The same shall apply to the order.

1. Details of the disposition;

On July 22, 2008, the Defendant issued a corrective order and a penalty surcharge payment order as stated in the attached Form, on the ground that the Plaintiff committed an unfair collaborative act by agreement with the successful bidder and the bid price in the bidding for the construction of multi-family housing in Daegu City, Daegu, 2 district 2 district 2 district 2 district 2 district 2 district 2 district 2 district 2 district 2nd district 2008 (hereinafter “instant disposition”).

[Ground for recognition] Unsatisfy

2. Whether the instant disposition is lawful

A. Restriction on competition

1) The plaintiff's assertion

The plaintiff asserts that the bid price of this case was set at a very low level of the successful bid price of neighboring construction works (80%). At the time of the public announcement of the tender, the plaintiff was actually scheduled to participate in the bidding from the time of the public announcement of the tender because there was no business feasibility as a body for construction in Daegu City, and thus there was no business entity participating in the bidding, so the agreement of this case is merely limited to participation in the construction of a brick in order to prevent a failure, not under the premise of the intention or effect of restricting competition, and even if the construction of a brick was not participated in as a result of a failure to participate in it, there was a possibility that the plaintiff will be a final contractor.

2) Determination

In the absence of a construction company to participate in the instant bidding as argued by the Plaintiff, the bidding should be conducted as a matter of course. Nevertheless, the Plaintiff participated in the brick construction to become a successful bidder, and subsequently, the Plaintiff was awarded a bid at an amount equal to 9.6% of the estimated price of the order due to manipulating the design score of the Plaintiff and the brick construction (Evidence A). As such, the agreement between the Plaintiff and the Samsungsan Construction is sufficiently recognized as having the effect of restricting competition. Furthermore, even if the instant bid was failed, there is a possibility that the Plaintiff would become a final contractor, and there is insufficient evidence to acknowledge that there is any possibility that the Plaintiff would be a final contractor, and there is no other evidence to prove otherwise.

Therefore, the Plaintiff’s assertion disputing competition limitation of the instant agreement is rejected.

B. The reduction of the second part of investigation co-offenders

1) Non-disclosure of the grounds for disposition

A) The plaintiff's assertion

The Plaintiff asserted that the Defendant did not recognize the Plaintiff as the second-class investigator in the instant disposition, and that the instant disposition violated the duty of presentation of reasons under the Administrative Procedures Act, since it did not present specific reasons in the written disposition, etc.

B) Determination

According to the statement in Gap evidence No. 1, the defendant stated in the written resolution that the defendant does not reduce the penalty surcharge following investigation cooperation with the plaintiff on the ground that "the materials submitted by the plaintiff are already secured by the defendant or are disclosed to the public, and there is no value of evidence" in the written resolution.

According to this, even though it is stated on the ground that it did not “reductions from investigation cooperation” at the stage of voluntary adjustment penalty surcharges for calculating penalty surcharges, the mitigation claimed by the Plaintiff refers to a “reduction of investigation co-offenders” which refers to the cooperation of the Defendant in the second order after the investigation was commenced. Thus, the above ground can be deemed as a ground for disposition regarding mitigation of investigation co-offenders asserted by the Plaintiff.

Therefore, we cannot accept the Plaintiff’s assertion that the Defendant did not present a specific reason that the Plaintiff did not recognize the Plaintiff as a second-class investigative partner while rendering the instant disposition.

2) Illegal grounds for disposition

A) Specific grounds for the disposition

The Defendant did not recognize the Plaintiff’s status as “the second-class investigator for investigation” during the pleadings of the instant case as follows.

① The Plaintiff did not submit evidence necessary to prove an unfair collaborative act.

② The Plaintiff did not faithfully cooperate until the investigation is completed.

B) Relevant statutes

The entries in the attached statutes are as follows.

(C) As to the ground for disposition

(1) The defendant's assertion

The defendant asserts to the effect that in order for the defendant to "written evidence necessary to substantiate unfair collaborative acts" under relevant Acts and subordinate statutes, if it is sufficient to directly prove the existence of an agreement, such as a written agreement, etc., it is not sufficient. However, when submitting a confirmation document or a written statement of an executive officer or employee stating the contents of the collaborative act as in this case, the documents, goods, and electronic data, etc. to verify the contents of the collaborative act should be additionally submitted. In addition to the written statement, there is no difference between the voluntary report of the obstructsan Construction, which is the first investigator and cooperation at the time, and the contents revealed by the defendant's investigation. Thus, it cannot be deemed that the defendant already submitted the documents and evidence to prove the collaborative act, or only those which are not related to or can be easily sought by anyone, and thus, it does not constitute "the evidence necessary to prove the collaborative act" as it

(2) Determination

(A) Scope of “necessary evidence”

According to Article 22-2(1)2 of the Monopoly Regulation and Fair Trade Act and Article 35(1)3(a) and (4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 23475, Dec. 30, 2011; hereinafter “Enforcement Decree”), to become the second investigative partner, the second person is the first person who alone provides evidence necessary to prove the second collaborative act, and the methods of submitting such evidence are determined and publicly notified by the Fair Trade Commission. Furthermore, according to Article 4(1)2 proviso of the Enforcement Decree of the same Act, the Fair Trade Commission’s operation of the system of reduction and exemption, including corrective measures against voluntary reporters, etc. (amended by Act No. 2011-6, Jul. 20, 201; hereinafter “reduction and exemption notice”), “Evidence necessary to prove the second collaborative act” should be submitted along with technical data to verify the existence of technical data, such as written confirmation of the collaborative act’s participation in the collaborative act, etc. (hereinafter “technical data”).

However, in full view of the following contents, “additional materials to prove collaborative acts” as referred to in this context includes documents, etc. containing the statements of the persons involved in the collaborative act, such as written confirmation or written statement. The evidence which does not limit the probative value of the evidence already submitted to the new facts that the Fair Trade Commission failed to ascertain by the time of submission, but includes all the evidence which contributed to enhancing the probative value of the evidence or ensuring the authenticity of the facts revealed at the time of investigation. As long as so, it does not change even if the materials are already secured by another way by the Fair Trade Commission.

1. Institutional purport

The purpose of the reduction or exemption system for voluntary reporters or investigators is to provide benefits in return for cooperation in the investigation of the executive agency that regulates unfair collaborative acts, and to discontinue or prevent unfair collaborative acts by undermining the trust among the enterprisers involved in the collaborative acts by granting such benefits (see Supreme Court Decision 2009Du15043, Jan. 14, 2010). Therefore, it cannot be deemed that the reduction or exemption system is limited to cases where voluntary reporters or investigators actively contributed to facilitating the investigation of the executive agency.

(2) The “necessary evidence” includes statements and evidence.

The evidence required for proving an unfair collaborative act under each subparagraph of Article 35(1) of the Enforcement Decree includes not only documents, but also statements (Supreme Court Decision 2007Du3756 Decided September 25, 2008). In order to become a voluntary reporter or a person for voluntary investigation or a person for voluntary investigation cooperation, the evidence necessary for proving an unfair collaborative act should be submitted. If the evidence for the statement is excluded or lacks solely, it would be contrary to the institutional intent of the system of reduction and exemption, such as voluntary reporter or person for voluntary report, since a person who did not have any particular supporting material, other than the statement of the person concerned, cannot be a voluntary reporter or person for investigation or cooperation.

In this respect, if the scope of “necessary evidence” is limited to the submission of “necessary evidence” in the notice of reduction or exemption to the meaning that the submission of a statement, etc. containing the statements of the relevant persons is insufficient and that other additional materials should be submitted, it shall be deemed that it exceeds the scope of delegation on the model.

Therefore, it is reasonable to interpret that “additional materials that can prove collaborative acts” to be submitted along with “materials describing the details of collaborative acts” according to the notice of reduction or exemption includes statements, confirmation documents, etc. of the relevant persons.

(3) Reinforcement evidence including reinforcement evidence, etc.

The “Evidence necessary to prove an unfair collaborative act” under the Enforcement Decree of the Act on the Establishment, etc. of the Corporation and the Commission does not necessarily limit the evidence to prove an unfair collaborative act, and includes the evidence to indirectly and indirectly confirm an unfair collaborative act (see Supreme Court Decision 2007Du2920, Oct. 23, 2008). Therefore, unless otherwise provided in the text of the Act, there is no reason to view that the evidence already submitted to strengthen the probative value of the evidence or to reinforce the authenticity of the facts revealed at the stage of the investigation is not “Evidence necessary to prove an unfair collaborative act”.

However, Article 35 (1) 2 of the Enforcement Decree of the Maritime Affairs and Trade Act provides that "the Fair Trade Commission cooperates in an investigation in a situation where information is not obtained or sufficient evidence necessary to prove an unfair collaborative act is not secured," with respect to the persons engaged in the investigation conducted by the first priority in Article 35 (1) 2 of the Enforcement Decree of the Maritime Affairs and Trade Act." On the other hand, with respect to the persons engaged in the investigation conducted by the second priority in subparagraph 3, the said persons are simply providing evidence necessary to prove an unfair collaborative act, and the said additional requirements are not provided, and the second priority in

According to Article 35 (1) 2 and 3 of the Enforcement Decree of the Act, with respect to persons engaged in investigation and cooperation, the amount of penalty surcharges shall be exempted, and corrective measures shall be reduced or exempted (see Supreme Court Decision 2007Du2920, Oct. 23, 2008). On the other hand, with respect to persons engaged in investigation and cooperation in the second investigation, the amount of penalty surcharges shall be reduced by 50% and corrective measures shall be mitigated (the discretionary act). Thus, it is difficult to view that the requirements of the level of reduction, such as the persons engaged in investigation and cooperation in the second investigation, are required for persons engaged in investigation and cooperation in the second investigation.

(B) Facts and determination of recognition

However, the following facts are acknowledged in light of Gap evidence Nos. 1, 4, 7, 9, Eul evidence Nos. 8 and the purport of Non-Party 1's testimony.

① On October 201, 2009, the Plaintiff reported an investigator to the Defendant under the second order on December 18, 2009, which was after the construction of brickd building was reported as an inspector under the first order on October 20, 2009, and subsequently submitted the revised data to the Defendant on February 11, 2010, within the correction period for the application for reduction or exemption.

② The Plaintiff’s investigation co-inheritors’s report and revised data include the following: “a certificate of confirmation issued by three executives and employees belonging to the Plaintiff,” the Plaintiff’s construction cost statement delivered by the Plaintiff to the construction of walls; “a certificate of the Plaintiff’s construction cost statement”; “a design service agreement between the construction of walls and the building of building of building of building of building of building of building of building of building of building of building of building of building of building of building of building of building of building of building of building of building of building of building of building of building of building of building of

③ In particular, in the “written confirmation of three executives and employees belonging to the Plaintiff,” the agreement and process of execution of the collaborative act in this case is specified.

④ In addition, the “written confirmation of preparation of Nonparty 2” is a written confirmation prepared by the person in charge of design affairs belonging to Namsan Construction, Co., Ltd., Ltd., which performed design services for the construction of walls in relation to the instant bidding, and it was the process and content that the construction of walls was conducted for the construction of walls, namely, the process and content that the construction of walls was conducted for the purpose of preventing the occurrence and failure of the Plaintiff’s employees. As the ordering person requested the construction of walls to perform design services for the construction of walls at the level of design service cost to be covered by the second-class bidder, the fact that the construction of walls was conducted at a low price. The fact that the Defendant did not investigate Nonparty 2 until the Plaintiff submitted it (the bid was determined as the successful bidder even if the Plaintiff submitted the bid at a higher price than the construction of walls in this case, because the bid at issue was the highest method to determine the successful bidder, but the design score at the highest price for the construction of the walls was much lower than the design score for the above reason).

In light of the aforementioned legal principles, the fact of recognition and the bidder’s offering of “construction cost account statement” to other participants may serve as a single requisition for ratification of bid collusion, and in light of the following: (a) the “design service contract document between the Musan Construction and the Southern Construction”; and (b) the “design cost-related tax invoice”, etc., which may serve as materials to reinforce Nonparty 2’s statements, all of the evidence submitted by the Plaintiff may be deemed as constituting “additional materials to prove collaborative acts,” even if all of the evidence submitted by the Plaintiff were not to prove new facts, as they may serve to enhance the probative value of the evidence already submitted or to secure the authenticity of the facts revealed at the stage of the investigation.

Therefore, this part of the defendant's assertion that the plaintiff did not submit evidence necessary for proving collaborative acts under Article 35 (1) 3 (a) of the Enforcement Decree is rejected.

(2) As to the grounds for disposition

(1) The defendant's assertion

The defendant asserts that, in consideration of the fact that the non-party 3's regular director of the 2008 branch of the 2008 branch of the 2008 branch of the 2008 branch of the B-1, B-2 branch of the 2008 branch of the 2008 branch of the 2008 branch of the 2008 branch of the 2002 branch of the 202 branch of the 202 branch of the 202 branch of the 202 branch of the 202 branch of the 202 branch of the 206 branch of the 201 branch of the 206 branch of the 201 branch of the 206 branch of the 205 branch of the 201 branch of the 201

(2) Determination

First, even if the executives and employees of the Plaintiff, like the Defendant’s assertion, have prepared documents prepared for the Defendant’s investigation or have prepared various countermeasures against other external institutions’ supervisory activities, such circumstance alone cannot be readily concluded that the Plaintiff failed to cooperate faithfully until the investigation is completed in relation to the collaborative act in this case.

Next, the contents of the judgment of the court below were not included in the grounds for disposition indicated in the written resolution, and it cannot be asserted as grounds for disposition since basic facts are not identical to those of the grounds for disposition in the written resolution. In addition, according to the records of Nos. 4, 7, and No. 3-12 of the evidence No. 3-2, it can be acknowledged that the above contents are included in the investigation and cooperation report submitted by the plaintiff or the fact that the non-party No. 3 standing director of the plaintiff

Therefore, the defendant's assertion that the plaintiff did not cooperate faithfully until the investigation is completed cannot be accepted.

C. Scope of revocation

According to Article 35(1)3 of the Enforcement Decree, a penalty surcharge shall be reduced by 50% and a corrective measure may be mitigated for a person engaged in investigation cooperation. However, as seen earlier, even though the Plaintiff satisfied the requirements of a person engaged in investigation cooperation, the Defendant did not reduce penalty surcharges and corrective measures on the ground that the Plaintiff failed to meet the requirements. Therefore, the Defendant’s disposition of this case shall be revoked in its entirety on the ground that it misleads the Plaintiff as to whether the requirements of the person engaged in investigation cooperation are met or not.

3. Conclusion

Therefore, the plaintiff's claim is accepted by all of the reasons.

[Attachment-Related Acts and subordinate statutes omitted]

Judges Ansan-jin (Presiding Judge)

Note 1) In particular, with respect to the fact that the Fair Trade Commission does not need to obtain data already secured, see Supreme Court Decision 2007Du2920 decided Oct. 23, 2008