2012Du25941 Corrective Order and Revocation of Order for Payment of Penalties

Large Construction Co., Ltd

Fair Trade Commission

Seoul High Court Decision 2011Nu18337 Decided October 10, 2012

September 12, 2013

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In light of the relevant legal principles and records, the court below is just in holding that each of the instant collaborative acts constitutes an unfair collaborative act prohibited by the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) on the grounds as stated in its holding, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on competition restriction under the Fair Trade Act, or by violating the Supreme Court precedents.

2. As to the grounds of appeal Nos. 2 through 4

In full view of the provisions of Articles 6, 17, 22, 24-2, 28, 31-2, and 34-2 of the Fair Trade Act, the Fair Trade Commission has discretion to determine whether to impose a penalty surcharge on a violation of the Act and the amount of a penalty surcharge if a penalty surcharge is imposed. Thus, the Fair Trade Commission’s imposition of a penalty surcharge on a violator of the Act is a discretionary act. However, if there are grounds such as misunderstanding of the fact that serves as the basis for the imposition of a penalty surcharge in exercising the discretionary power or violating the principle of proportionality and equality, it is illegal as a deviation or abuse of discretionary power (see, e.g., Supreme Court Decisions 200Du6121, May 28, 2002; 2008Du4695, Mar. 11, 2010).

According to the reasoning of the judgment below, the court below held that: (a) even if the defendant applied the notice on the detailed criteria, etc. for the imposition of the revised penalty surcharge (hereinafter referred to as "the notice on the revised penalty surcharge") that the defendant can reduce the penalty surcharge by up to 20% without applying the notice on the detailed criteria, etc. for the imposition of the revised penalty surcharge (hereinafter referred to as "the notice on the revised penalty surcharge") that the defendant can reduce the penalty surcharge by up to 20% without applying the notice on the revised penalty surcharge (hereinafter referred to as "the notice on the revised penalty surcharge") since the bid collusion was conducted in collusion with the successful bidder and the bid price, and it did not violate the principle of proportionality and equality; (b) since there is no evidence to acknowledge that the reduction of the penalty surcharge by the plaintiff's investigation cooperation was conducted and the reduction of the penalty surcharge by up to 20% did not violate the principle of proportionality, it cannot be deemed that there was an abuse of discretion of the defendant, which was an abuse of discretion of the successful bidder.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were errors by misapprehending the legal principles on the application of "serious violation", or by erroneously applying the notice of penalty surcharge before the amendment, or by misapprehending the legal principles on proportionality and equality when calculating penalty surcharge for A apartment construction collusion.

3. Conclusion

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 Poe-dae

Justices Yang Chang-soo

Justices Ko Young-han

Justices Kim Chang-suk