[1] The criteria for determining whether a claim for penalty surcharge against an act of violation of administrative duty is a rehabilitation claim under Article 118 subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act, and whether a claim for penalty surcharge is a rehabilitation claim after the commencement of rehabilitation procedures in cases where a disposition was issued after the commencement of rehabilitation procedures for an act of violation of duty by a person liable for penalty surcharge

[2] Whether an unfair collaborative act under each subparagraph of Article 19(1) of the Monopoly Regulation and Fair Trade Act is established when there exists an agreement between the parties on the bid price, etc. in a bidding or auction (affirmative)

[3] Where a decision to authorize an rehabilitation plan is made without reporting the right to claim a penalty surcharge as a rehabilitation claim, whether the right to claim a penalty surcharge constitutes a claim that is not exempt pursuant to Article 140(1) and the proviso of Article 251 of the Debtor Rehabilitation and Bankruptcy Act (negative), and whether the disposition imposing a penalty surcharge is legitimate after the decision to authorize the rehabilitation plan (negative)

[1] Article 118 subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act provides for “the right to property arising from the cause before the commencement of rehabilitation procedures against the debtor” as one of the rehabilitation claims. In a case where a penalty surcharge is imposed on an act of violating administrative duties, the right to claim a penalty surcharge falls under the property right stipulated in the above provision, and thus, is determined whether the right to claim a penalty surcharge is a rehabilitation claim or a rehabilitation claim

Where any violation of obligation by a person liable for the payment of penalty surcharges is established before the rehabilitation procedures commence for the debtor, the right to claim the penalty surcharges shall become a rehabilitation claim, even if such disposition is

[2] The “unfair collaborative act” under each subparagraph of Article 19(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) is established only when there exists an agreement among the parties with regard to bid price, etc. Meanwhile, in cases where business entities have reached an agreement that restricts transaction of goods or services under Article 19(1)3 of the Fair Trade Act (hereinafter “the agreement that restricts transaction of goods or services”) and reached an agreement that determines the bid price, etc. under Article 19(1)8 of the Fair Trade Act (hereinafter “individual bid collusion”), in order to implement the agreement with respect to individual bidding in accordance with the proviso to Article 9(1) and Article 61(1) [Attachment 2] of the Enforcement Decree of the Fair Trade Act, a penalty surcharge shall be calculated on the basis of the contract price in individual bidding in which each business entity participated in the bidding agreement.

Therefore, in a case where a certain business operator who agreed to restrict the transaction and participated in the collusion on an individual bid according to the transaction restriction agreement, and thereafter the rehabilitation procedure was commenced for the said business operator, the right to claim a penalty surcharge for the portion of the individual bid collusion, which the business operator participated before the commencement of the rehabilitation procedure, shall be deemed as a rehabilitation claim. Even if, even after the commencement of the rehabilitation procedure, other business operators other than the business operator still continue to meet the individual bid collusion

[3] The main text of Article 251 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”) provides that when a decision to authorize the rehabilitation plan is made, the debtor shall be exempted from liability for all rehabilitation claims and rehabilitation security rights except for the rights recognized by the rehabilitation plan or by this Act. This is not only the fact that a penalty surcharge claim, which constitutes a rehabilitation claim, may be exempted in accordance with the aforementioned provisions.

Meanwhile, Articles 140(1) and 251 proviso of the Debtor Rehabilitation Act provide that fines, penalties, criminal litigation costs, additional charges, and fines for negligence prior to the commencement of rehabilitation procedures shall not be exempted even if it is decided to grant authorization of the rehabilitation plan. This is prescribed as an exception to the exemption from rehabilitation claims, etc. according to a decision to grant authorization of the rehabilitation plan, and the corresponding claim should be deemed to be limited and restricted. The claim for penalty surcharges not listed in the above provision should be deemed to be exempted when it is decided to grant authorization

Therefore, when the rehabilitation plan approval order without reporting the right to claim penalty surcharge, which is a rehabilitation claim, becomes effective in accordance with the main sentence of Article 251 of the Debtor Rehabilitation Act, and the imposing authority of penalty surcharges cannot impose penalty surcharges any more. Therefore, the imposition of penalty surcharges by the imposing authority of penalty surcharges after the rehabilitation plan approval order

[1] Article 118 subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act, Article 19(1) of the Monopoly Regulation and Fair Trade Act / [2] Article 118 subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act, Article 19(1)8 of the Monopoly Regulation and Fair Trade Act / [3] Articles 140(1) and 251 of the Debtor Rehabilitation and Bankruptcy Act, Article 19(1) of the Monopoly Regulation and Fair Trade Act

[1] [3] Supreme Court Decision 2015Du54193 Decided January 28, 2016 / [2] Supreme Court Decision 2016Du3360 Decided April 27, 2017 (Gong2017Sang, 1129) / [3] Supreme Court Decision 2013Du5159 Decided June 27, 2013 (Gong2013Ha, 1373)

Plaintiff (Law Firm LLC, Attorneys Park Jong-sik et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm Song, Attorneys Yellow-hun et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Nu55327 decided November 11, 2016

The part of the lower judgment regarding the penalty surcharge payment order is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals are dismissed.

1. We examine the grounds of appeal on the part of the penalty surcharge payment order.

A. (1) Article 118 Subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”) provides “property claims arising before the commencement of rehabilitation procedures against an obligor” as one of the rehabilitation claims. In a case where penalty surcharges are imposed on an act of violating administrative duties, the penalty surcharge’s claim constitutes a property claim prescribed under the said provision, and thus, the determination is based on whether the said claim constitutes a rehabilitation claim prior to the commencement of rehabilitation procedures.

Where a violation of a person liable to pay a penalty surcharge is established before the commencement of rehabilitation procedures, the person liable to pay the penalty surcharge, even if the disposition for imposition is issued after the commencement of rehabilitation procedures, becomes a rehabilitation claim (see Supreme Court Decision 2015Du54193, Jan. 28, 2016, etc.).

The “unfair collaborative act” under each subparagraph of Article 19(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) is established only when the parties to a bid agreement exist with respect to the price of bidding, etc. Meanwhile, in cases where the business entities agreed to restrict the transaction of goods or services as prescribed by Article 19(1)3 of the Fair Trade Act (hereinafter “individual bidding agreement”) and agreed to determine the bidding price, etc. as prescribed by Article 19(1)8 of the Fair Trade Act with respect to an individual bidding (hereinafter “individual bidding agreement”) in order to implement the agreement with respect to each bidding agreement by dividing the bidding sector in which each enterpriser participates, etc. in relation to multiple bidding methods, a penalty surcharge shall be calculated on the basis of the contract price in each bidding agreement to which each business entity participated as a party pursuant to the proviso to Article 9(1) and Article 61(1) [Attachment 2] of the Enforcement Decree of the Fair Trade Act (see, e.g., Supreme Court Decision 2016Du3360, Apr. 27, 2017).

Therefore, in a case where a certain business operator who agreed to restrict the transaction and participated in the collusion on an individual bid according to the transaction restriction agreement, and thereafter the rehabilitation procedure was commenced for the said business operator, the right to claim a penalty surcharge for the portion of the individual bid collusion, which the business operator participated before the commencement of the rehabilitation procedure, shall be deemed as a rehabilitation claim. Even if, even after the commencement of the rehabilitation procedure, other business operators other than the business operator still continue to meet the individual bid collusion

(2) The main text of Article 251 of the Debtor Rehabilitation Act provides that, when a decision is made to authorize the rehabilitation plan, the debtor shall be exempted from liability for all rehabilitation claims and rehabilitation security rights except for the rights recognized by the rehabilitation plan or by this Act. The same does not apply to the claims for penalty surcharges that constitute rehabilitation claims.

Meanwhile, Articles 140(1) and 251 proviso of the Debtor Rehabilitation Act provide that fines, penalties, criminal litigation costs, additional charges, and fines for negligence prior to the commencement of rehabilitation procedures shall not be exempted even if it is decided to grant authorization of the rehabilitation plan. This is prescribed as an exception to the exemption from rehabilitation claims, etc. pursuant to a decision to grant authorization of the rehabilitation plan, and the corresponding claim should be deemed limited to the list of claims corresponding thereto. Claims for penalty surcharges not listed in the aforementioned provision shall be deemed exempted when it is decided to grant authorization of the rehabilitation plan (see Supreme Court Decision 2013Du5159, Jun. 27, 2013).

Therefore, in the event that the rehabilitation plan is authorized without reporting the right to claim a penalty surcharge, which is a rehabilitation claim, as a rehabilitation claim, the imposition authority of a penalty surcharge cannot impose a penalty surcharge any more due to the effect of exemption pursuant to the main sentence of Article 251 of the Debtor Rehabilitation Act. Therefore, the imposition authority of a penalty surcharge after the rehabilitation plan is authorized is unlawful (see Supreme Court Decisions 2013Du5159, 2015Du54193,

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) From February 2, 2011 to August 2012, the Korea Gas Corporation publicly announced 11 natural gas main pipelines and the management office construction works.

(2) On March 201, 201, 17 companies, including Samd Co., Ltd. (hereinafter “Plaintiffs”) that the Plaintiff took over the lawsuit (hereinafter “the Plaintiff”) agreed to participate in the bidding of 10 construction sections (hereinafter “the second main pipe construction”) excluding “construction works for the facilities for supplying sewage-combined gas,” among the said 11 construction sections (hereinafter “the second pipe construction”) by lottery, in which the Plaintiff agreed to set a successful bid in an individual bid, and the bid bid rate shall be at least 80%, and if the Plaintiff was awarded a successful bid on one occasion, the subsequent bid is ordered to participate only in the second pipe construction (hereinafter “the second collaborative act”). The first collaborative act of the first pipe construction works that had been previously called “the first collaborative act”).

(3) At each time the bid by section of the second main pipeline construction is publicly announced, the 17 companies, including the Plaintiff, etc., determined in advance the bid price and bid bid rate based on the second collaborative act, and implemented the agreement by participating in the bidding at a predetermined bid rate after making an individual agreement to participate in the bidding by companies other than the successful bidder.

(4) On September 1, 201, a joint supply and demand organization that represents the Plaintiff was determined as a successful bidder in the construction section of the Ulsan-Yuk-Yukuk-gu Main Pipelines Construction Work, which was conducted in the third place among the main pipes construction works. Moreover, the Plaintiff participated in the construction section of the “Sara Management Office”, “Saeong-Yeong-Yeng main pipelines”, “Yeong-Yeong-Ying main pipes Section 2”, “Yeong-Jing main pipes Section 1”, and “Sacheon-Sacheon Integrated Supply System” bidding, and the joint supply and demand organization that represents the Plaintiff participated in the construction section of the “Tgu Innovation Urban Integrated Energy Supply System”.

(5) However, on July 23, 2012, there was a decision on commencing rehabilitation procedures for the Plaintiff.

(6) After the completion of rehabilitation procedures against the Plaintiff, the Defendant issued an order to pay a penalty surcharge of KRW 740 million on July 20, 2015, which is KRW 740 million with respect to the Plaintiff. On May 26, 2016, the Defendant revoked ex officio only the penalty surcharge of KRW 467 million with respect to the first collaborative act among the above order to pay the penalty surcharges.

C. Examining these facts in light of the aforementioned legal principles, since the Plaintiff participated in collusion on an individual bidding according to the second collaborative act before the commencement of the rehabilitation procedure and participated in the award or the winning of a contract, the Plaintiff’s claim for penalty surcharges arising from the collusion on an individual bidding collusion that occurred before the commencement of the rehabilitation procedure constitutes rehabilitation claims under Article 118 subparag. 1 of the Debtor Rehabilitation Act. However, the Defendant did not legally report the above claim for penalty surcharges as rehabilitation claims, and thus, the exemption of the above claim for penalty surcharges under the main sentence of Article 251 of the Debtor Rehabilitation Act becomes effective. Accordingly, the Defendant’s order for payment of penalty surcharges for the second collaborative act after the authorization

D. Nevertheless, the lower court determined that the payment order of penalty surcharges was lawful by deeming that the claim for penalty surcharges against the second collaborative act does not constitute rehabilitation claims. In so doing, the lower court erred by misapprehending the legal doctrine on rehabilitation claims under the Debtor Rehabilitation Act or the validity of exemption, thereby adversely affecting the conclusion of the judgment.

2. The appeal on the part of the corrective order shall be examined;

When an appellate brief is not filed within the deadline for submitting the appellate brief under Article 427 of the Civil Procedure Act, such appeal shall be dismissed pursuant to Article 8(2) of the Administrative Litigation Act and Article 429 of the Civil Procedure Act.

According to the records, the plaintiff filed a statement of grounds for appeal, but did not state the grounds for appeal on the corrective order, and thus, the above dismissal of grounds for appeal constitutes grounds for appeal.

3. Without examining the remaining grounds of appeal, the part of the judgment below regarding the payment order of penalty surcharges is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of

Justices Kim Chang-suk (Presiding Justice)