Cases
2012Du29028 Demanding revocation of penalty surcharges
Plaintiff, Appellant
KNT Co., Ltd.
Defendant, Appellee
Fair Trade Commission
Judgment of the lower court
Seoul High Court Decision 2009Nu26298 Decided November 29, 2012
Imposition of Judgment
April 26, 2013
Text
The appeal is dismissed.
The costs of appeal are assessed against the Plaintiff.
Reasons
The grounds of appeal are also examined.
1. In full view of the legal provisions 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 of Dec. 31, 2004; hereinafter “former Monopoly Regulation and Fair Trade Act”), the Fair Trade Commission whether to impose penalty surcharges on a violation of the Fair Trade Act and if it imposes penalty surcharges.
The former Monopoly Regulation and Fair Trade Act and the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 18768, Mar. 31, 2005; hereinafter “former Enforcement Decree of the Fair Trade Act”) have the authority to take discretion as to whether to determine the amount of penalty surcharges in detail within a certain scope. Accordingly, the Fair Trade Commission’s imposition of penalty surcharges against a person who violates the Fair Trade Act is a discretionary act or, inasmuch as there are grounds such as misunderstanding of the fact that served as the basis for imposing penalty surcharges in exercising such discretion or violating the principle of proportionality, it is illegal as a deviation or abuse of discretionary power (see Supreme Court Decision 2006Du4226, Feb. 15, 2008, etc.).
Meanwhile, with regard to the specific calculation of penalty surcharges, the former Enforcement Decree of the Fair Trade Act sets the method of calculating penalty surcharges by step according to the order of basic penalty surcharges, mandatory adjustment penalty surcharges, voluntary adjustment penalty surcharges, and imposition penalty surcharges (Article 61(1) and attached Table 2).
2. The lower court determined that the Defendant’s calculation of the instant penalty surcharge by phase did not deviate from the scope of discretion for the following reasons.
First, considering various circumstances such as the price collusion between the Plaintiff and the Plaintiff, which is one of the entrepreneurs with a market share of 100%, that the instant collaborative act increases or adjusts the lower price of the telecom at the Plaintiff’s price, it cannot be said that the Defendant assessed the instant collaborative act as “a very serious violation,” and applied 3.5% of the base penalty surcharge imposition rate at the stage of calculating the basic amount and the amount of surcharges.
Second, in the instant case, considering the nature of the administrative guidance of the Ministry of Information and Communication and the progress from that to that of the instant collaborative act, it is justifiable to reduce 10% of the administrative guidance of the Ministry of Information and Communications at the stage of voluntary adjustment penalty by deeming that the administrative affairs of the Ministry of Information and Communications actually affected the instant collaborative act, while not recognizing the causal relationship between the said administrative guidance and the instant collaborative act. In addition, given that the telecom differs from the Plaintiff in terms of the current net income, market share, and the role in the instant collaborative act, 30% mitigation was made only for telecom.
on the ground that it does not violate the principle of equity.
Third, in a situation where it is difficult to accurately calculate the amount of unjust enrichment from the instant collaborative act, the reduction rate cannot be deemed to be inappropriate on the ground that the amount of unjust enrichment calculated by the Plaintiff itself was reduced by 20% at the imposition decision stage.
3. In light of the aforementioned legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to deviation and abuse of discretionary power with respect to the calculation of penalty surcharges.
4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Jae-young
Justices Ko Young-han
Jeju High Court Justice Yang Chang-soo
Justices Park Byung-hee
Justices Kim Jae-tae