[1] The standard period for determining "violation prior to the enforcement of this Decree" under Article 19 (1) 1 of the former Monopoly Regulation and Fair Trade Act (amended by April 1, 2004) of the Addenda to the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 1870, Apr. 1, 2004)

[2] The case holding that the Enforcement Decree of the amended Act shall apply where, as an unfair collaborative act under Article 19 (1) of the former Monopoly Regulation and Fair Trade Act, a business operator's bidding agreement continues to be implemented in accordance with the bidding agreement even before the enforcement of the amended Enforcement Decree

[1] Article 19(1)1 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004); Article 19(2) of the Addenda to the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Apr. 1, 2004) / [2] Article 19(1)1 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004); Article 19(2) of the Addenda to the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Apr. 1, 2004)

[1] Supreme Court Decision 2004Du11275 decided Mar. 24, 2006 (Gong2006Sang, 728)

Crac Handa Co., Ltd. (Attorneys Kim Il-il et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Attorney Choi Han-hoon, Counsel for defendant-appellant)

Seoul High Court Decision 2005Nu16040 delivered on December 28, 2006

The part of the judgment of the court below regarding the order to pay penalty surcharges on government agency bidding agreement is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal is dismissed

The grounds of appeal are examined.

1. On the first ground for appeal

In full view of the adopted evidence, the lower court determined that the Plaintiff’s bid price, volume distribution, etc. (hereinafter “instant bidding agreement”) was an agreement with the government agency around October 1, 1998, and around March 7, 200 regarding the bid price, the bid price, the quantity distribution, etc. in connection with the purchase of the tea ordered by the government agency around October 1, 2000, and that the Plaintiff continued to engage in the Plaintiff’s 10th bidding agreement on May 1, 2003, the Plaintiff’s bid price and the Plaintiff’s 10th bidding agreement on the purchase of the tea ordered by the government agency until November 2004 (hereinafter “former 1st bidding agreement”). The lower court acknowledged that the Plaintiff continued to engage in the Plaintiff’s work as an employee even after the acquisition of the Nonparty’s 1, who participated in the bidding agreement on behalf of the government agency, and that it continued to engage in the Plaintiff’s business identical to the Plaintiff’s 13th bidding agreement.

In light of the relevant laws and records, the above fact-finding and judgment of the court below are justified. The court below did not err in the rules of evidence as otherwise alleged in the ground of appeal.

2. On the second ground for appeal

Article 2 (2) of the Enforcement Decree of the Act (amended by Presidential Decree No. 18356, Apr. 1, 2004; hereinafter "the Enforcement Decree of the Act") provides that "the imposition of penalty surcharges for violations before this Decree enters into force shall be governed by the previous provisions." In determining "violation before this Decree enters into force" in this Article, the date on which the agreement on price determination and the date on which the unfair collaborative act is terminated is not the date on which the agreement was reached, but the date on which the unfair collaborative act is terminated (see Supreme Court Decision 2004Du1275, Mar. 24, 2006).

In light of the fact that an unfair collaborative act under Article 19(1) of the Act is established when an enterpriser agrees with another enterpriser to jointly engage in an act falling under any of the subparagraphs of the same paragraph that unfairly limits competition, and it does not require the actual act to be conducted pursuant to the agreement, the lower court determined that, even if the actual act pursuant to the bidding agreement of this case continues until November 2004, since the bidding agreement of this case was made before April 1, 2004 as of the enforcement date of the amended Enforcement Decree, it cannot be deemed that the amended Enforcement Decree shall not apply to the bidding agreement of this case.

However, in light of the above legal principles, even if the time of the tender agreement in this case was prior to the enforcement of the amended Enforcement Decree, it cannot be deemed that the Plaintiff terminated the violation prior to the enforcement of the amended Enforcement Decree, and as long as specific enforcement acts pursuant to the tender agreement in this case have been continued even after the enforcement of the amended Enforcement Decree, the Enforcement Decree of the amended Enforcement Decree shall apply to the tender agreement in this case. Therefore, the above judgment below erred by misapprehending the legal principles on statutes applicable to the imposition of penalty surcharges, which affected the conclusion of the

3. Conclusion

Therefore, without examining the remaining grounds of appeal on the part of the judgment below regarding the payment order of penalty surcharge concerning the instant bidding agreement, this part of the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Shin Hyun-chul (Presiding Justice)