Seoul Metropolitan Government Association (Law Firm Sejong, Attorneys Ba-dae et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Attorney Park Chang-chul, Counsel for defendant-appellant)

June 28, 2007

1. The Defendant’s revocation of the part exceeding KRW 101,00,000 among the penalty surcharge payment orders stated in the attached Table No. 206-056 of March 28, 2006 and the attached Table No. 2006-048 of September 15, 2006 against the Plaintiff as the Defendant’s ruling No. 2006-048 of September 15, 2006.

2. All remaining claims of the Plaintiff are dismissed.

3. Two minutes of the lawsuit shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

The Defendant’s corrective order, publication order, and penalty surcharge payment order on March 28, 2006, No. 2006-056 of the Decision No. 2006-048 of the Decision No. 2006, Sept. 15, 2006, respectively, is revoked.

1. Basic facts and circumstances of dispositions;

A. The plaintiff is an organization established by the holders of medical licenses who are working in Seoul Special Metropolitan City for the purpose of improving national health and protecting the rights and interests of its members, and falls under the business operators' organization under Article 2 subparagraph 4 of the Monopoly Regulation and Fair Trade Act (amended by Act No. 7428, Mar. 31, 2005; hereinafter "Act"), and the general status is as shown in Table 1.

â……§ 1) The plaintiff's general status

As of June 30, 2005, units: 50,000 won and names

The number of members who are members of the Council on December 18, 1915, the number of members who are members of the Council on the date of establishment of the Schedule in the main sentence, shall be 30 2,039,329 2314 247 139 109

1) A medical clinic: A doctor who establishes and operates a medical institution and is engaged in medical services;

2. Direct doctors: Doctors who work for national, public, private hospitals, medical education institutions, etc.;

(c) A doctor for training: An intern or ready-art in training;

(d) Doctors of public service: Doctors working in local governments and public institutions (public health doctors, military doctors, etc.);

B. The Plaintiff’s association has 23 officers, including one chairperson, and its umbrella organization is comprised of 25 Gu subdivisions (hereinafter “subcommittees”) composed of the council members directly operating the council and 25 special subdivisions, etc. consisting of salary and training doctors working at a hospital, general hospital, etc., and the decision on major agenda is made by a resolution body, such as a representative general meeting consisting of representatives representing each of the above divisions, a standing director-general meeting consisting of standing directors, etc. The status of the composition of the Plaintiff’s members is as shown in Table 2.

[Attachment 2] Composition of Plaintiff Members

On June 30, 2005, units: name

In the case of the head of the Dong-gu Branch of the Branch of the Branch of the Association (Gu Association) and the head of the hospital (former 5), 5,355 - 5,355 - 440 5,648 6,088 16,784 6,800 5,8112,432 18,243

5) Council members: Medical institutions equipped with facilities capable of accommodating less than 30 patients;

(vi)a hospital: a medical institution with the facilities capable of accommodating not less than 30 patients (if there are not less than 100 general hospitals);

C. The Plaintiff’s member medical clinic, etc. issues various pertinent certificates, such as a certificate of injury, according to the specialized department and scale. There is no separate statutory basis for determining the fee for issuing a certificate of a medical institution, and individual medical institutions voluntarily set the fee. Each medical institution reports the fee for issuing a certificate voluntarily determined pursuant to Article 37 of the Medical Service Act to the head of the competent Gu, etc. and accordingly collects the fee.

(d) The Ministry of Health and Welfare, in consultation with relevant organizations, such as the Korea Hospital Association of Incorporated Association, the Korea Medical Association of Incorporated Association, etc. in 1995, has set the upper criteria for the upper limit of the issuance fees as shown in Table 3 attached hereto and has directed medical institutions to voluntarily comply with them.

Table 3

(unit: Won)

본문내 포함된 표 종 별 수수료 비 고 일반진단서 10,000 ？ 출생증명서 3,000 퇴원시 무료 사망진단서 10,000 출장시 출장료 별도 입·퇴원확인서 1,000 퇴원시 무료 병사용진단서 20,000 ？ 건강진단서 10,000 ？ 장애진단서 100,000 ？ 사체검안서 30,000 출장시 출장료 별도 진료비 추정서 일천만원미만 50,000 ？ 일천만원이상 100,000 ？ 정신감정서 100,000 ？ 상해진단서 3주미만 50,000 ？ 3주이상 100,000 ？

E. On March 26, 2005, the Plaintiff adopted a proposal for the increase of the fee for issuance of certificates recommended by the Geumcheon-gu Council at the 59th regular meeting of delegates as a regular agenda, and then decided on April 22, 2005 to raise the fee for issuance of certificates at a level more than twice the present one, and followed

F. On May 2, 2005 and April of the same month, the Plaintiff sent a certificate impression to the head of each Gu’s community and the head of each hospital twice, and notified the Plaintiff of the increase in the issuance fees in accordance with the above standard table prepared by the Plaintiff. On May 2, 2005, the Plaintiff sent a public notice demanding the Korean Association of Doctors, an incorporated association, to cooperate to implement the said increase in the fee nationwide.

Table 4> Details of increase of commission for issuance of Certificate

(unit: Won, per cent)

본문내 포함된 표 종 별 인상 전(A) (주7) 인상 후(B) 인상률 (B-A)/A×100 비고 일반진단서 10,000 20,000 100 ？ 출생증명서 3,000 6,000 100 ？ 사망진단서 10,000 50,000 400 ？ 입·퇴원확인서 1,000 2,000 100 ？ 병사용진단서 20,000 40,000 100 ？ 건강진단서 10,000 20,000 100 ？ 장애진단서 100,000 200,000 100 ？ 사체검안서 30,000 100,000 233 ？ 진료비 추정서 일천만원미만 50,000 100,000 100 ？ 일천만원이상 100,000 200,000 100 ？ 정신감정서 100,000 200,000 100 ？ 상해진단서 3주미만 50,000 100,000 100 ？ 3주이상 100,000 200,000 100 ？

Note 7) The upper limit of self-compliance set by Ministry of Health and Welfare in consultation with relevant organizations in 1995

G. Accordingly, the Defendant issued a corrective order, publication order, and payment of a penalty surcharge of KRW 500 million to the Plaintiff on March 28, 2006 on the ground that the Plaintiff’s above act was prohibited under Article 26(1)1 of the Act “an act unreasonably restricting competition among the constituent enterprisers by determining, maintaining, or changing the price,” and issued a corrective order, publication order, and payment of a penalty surcharge of KRW 500 million to the Plaintiff on September 15, 2006. The Defendant issued a disposition to reduce the penalty surcharge of KRW 305,00,000 on September 15, 2006 (hereinafter the above corrective order, publication order, and payment order of a penalty surcharge by referring to the remaining penalty surcharge after reduction in the adjudication among the above corrective order, publication order, and payment order (hereinafter “instant disposition”).

[Evidence] Facts that there is no dispute between the parties, Gap evidence 1 to 6, Eul evidence 1 to 5 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) It does not constitute an act determining, maintaining, or changing “price”

In order for a trade association's act to constitute a prohibited act falling under Article 19 (1) 1 of the Act, i.e., determination of price by a trade association, there must be a determination, maintenance, or change of "price". The plaintiff's act in this case is not related to the commission of the members of the trade association, but merely recommended amendments to the regulations of the Ministry of Health and Welfare. It does not constitute an act of determining, maintaining, or changing "price" under the above Act.

(2) No competition restriction is recognized.

In addition, the Plaintiff’s act of this case must be a case where the enterprisers’ organization’s act is unfairly restricted competition. The Plaintiff’s act of this case is an act of preparing and proposing amendments to the Ministry of Health and Welfare’s regulatory criteria as above, and notifying its result to its members. Such an act does not restrict the Plaintiff’s act of enhancing the autonomy in pricing prices of its members, which is restricted by the regulatory criteria, and it does not constitute a violation of the above law.

(3) There is a deviation or abuse of discretionary authority

(A) Even if the Plaintiff’s act of this case constitutes a violation of the above law, the degree of violation of the law shall be deemed to be a very weak case in light of the overall circumstances of the act. Thus, the Plaintiff’s act of this case shall be deemed to be a serious case of violation of the law, and the calculation and imposition of penalty surcharge against the Plaintiff by applying a high standard of imposition rate premised on this premise shall be deemed to have exceeded

(B) Also, in the publication order, the fact that the contents of this case have already been disclosed to the media, making the plaintiff voluntarily publish the same contents in daily newspapers constitutes deviation and abuse of discretionary power.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether an act constitutes determination, maintenance, or alteration of “price”

The "price" under Article 19 (1) 1 of the Act refers to the price of the goods or services provided by the enterpriser, namely, the economic benefits that the enterpriser receives in return from the counter-party to the transaction, and if the counter-party to the transaction is obligated to pay in reality to the enterpriser as the price of the goods or services in light of the characteristics, details and methods of the transaction, etc. of the relevant goods, it shall be included in the price of the relevant goods or services (see Supreme Court Decision 2000Du7872 delivered on May 8, 2001, etc.).

(3) On March 26, 2005, the Plaintiff, as a business association, adopted the proposal for issuance of a certificate at the regular assembly of 205 as an agenda, and decided on April 22, 2005 to raise more than the present one time the proposal for issuance of a certificate was sent on May 2, 2005 and on the 4th of the same month to the head of the City/Do community and the head of the hospital, who notified the Plaintiff of the increase in the issuance fee in accordance with the increase guidelines prepared by the Plaintiff. According to the above evidence, the Plaintiff’s above notification was not consulted with the Ministry of Health and Welfare on May 7, 2005 because the Plaintiff’s act of paying the fee of the Plaintiff to the 20th of the 5th of the 5th of the 20th of the 5th of the 20th of the 20th of the 20th of the 20th of the 20th of the 20th of the 20th of the 20th of the 20th of the 5th of the 20th of the public health policy.

As such, it is reasonable to view that the Plaintiff’s act is an act of urging its members to comply with the determination and notification of the price increase by the Plaintiff without merely making an amendment to the regulatory criteria for the Ministry of Health and Welfare. According to the evidence No. 6-1 and No. 2, as of January 6, 2006, it was investigated that the Plaintiff’s act of raising the fees for issuing medical relations certificates in accordance with the above stated standards at 596 medical institutions, which amount to approximately 9% of the total number of 6,571 members, was investigated as of July 22, 2005 [the Defendant]’s act of raising 40% of the total number of 5,355 medical institutions, and as of July 2, 2005, the Plaintiff’s act of raising the fees for issuing the above 6-1 and No. 52 medical institutions, and thus, it is difficult to view that the Plaintiff’s act of raising the fees for issuing the Plaintiff’s medical institutions to the extent that it actually did not have any binding effect on the Plaintiff’s individual medical institutions’s price increase.

Therefore, this part of the plaintiff's assertion is without merit.

(2) Whether competition restriction is recognized

As seen above, the Plaintiff’s act of this case is an act of determining the level of the fee for issuance in the field of issuance of S/Ls and 596 medical institutions corresponding to about 9% of the Plaintiff’s members upon the Plaintiff’s increase of the fee for issuance of their certificates. In light of the Plaintiff’s determination of the fee increase, etc., the Plaintiff’s act of this case is an act of restricting the price to be determined on the basis of the increased amount in the standard table of the issuance fee set as above for the Plaintiff’s members, which unfairly reduces competition in the medical institution issuing service sector of Seoul Special Metropolitan City, thereby affecting or likely to affect the Plaintiff’s free decision (see Supreme Court Decision 2003Du9251, Aug. 19, 2005).

The Plaintiff asserts to the effect that, in determining restrictions on competition with the Plaintiff’s act of this case, the “market for issuing certificates, such as medical certificates,” under the premise that the “market for issuing certificates” as the pertinent market exists separately from the medical service market, but in light of the fact that most of the certificates, such as medical certificates, are issued along with the medical treatment for the patients suffering from the patients suffering from the medical service market as alleged by the Defendant, the issuing market of certificates exists separately from the medical service market, and therefore, it was erroneous to view that medical institutions are competing with other

① The legislative intent of Article 19(1) of the Act prohibiting unfair collaborative acts is to promote fair and free competition, ultimately protect consumers as well as promote balanced development of the national economy. ② A medical institution receives fees for inspection and medical treatment separate from those for inspection and medical treatment, which can lead to benefits from health insurance. On the other hand, in that the issuance of a certificate is not subject to health insurance, there may be cases more than those for medical treatment. ③ In the case of partial certificates such as injury diagnosis, etc., it is difficult to conclude that a patient is issued incidental to the medical treatment. In particular, it is difficult to conclude that the Plaintiff’s fee for 200,000 won or more for less than 3 weeks, and that the Plaintiff’s fee for issuance of 200,000 won is likely to affect the choice of medical institution, and thus, the Plaintiff’s issuance of a certificate can ultimately be determined separately from the Plaintiff’s issuance of a certificate through the general hospital for more than 300,000,000 won.

Therefore, the plaintiff's assertion on this part is without merit.

(3) Whether the discretionary authority is deviates or abused or not

(A) Whether there is deviation from or abuse of discretionary power in imposing penalty surcharges

(4) As seen earlier, the Plaintiff’s act of issuing various certificates, such as medical certificates, is not subject to insurance benefits prescribed by the National Health Insurance Act, and thus, the Ministry of Health and Welfare has established the upper limit of the fee for issuing certificates in the form of administrative guidance for medical institutions in 195, and accordingly there is doubt as to the existence of competition in the market for issuing certificates. (2) Since the upper limit of the fee for the medical service established by the Ministry of Health and Welfare has been reduced for about 10 years without reflecting any change in economic conditions such as price, etc., it is extremely necessary for the Plaintiff to maintain and develop the rights and interests of its members (see, e.g., Supreme Court Decision 200Du1060, Apr. 1, 2006). It appears that the Plaintiff’s act of issuing certificates, such as the Plaintiff’s act of violating the National Health Insurance Act, as well as the Plaintiff’s act of raising the upper limit of the fee for issuing certificates, can be seen as having been carried out by the Ministry of Health and Welfare as one of Health and Welfare.

Meanwhile, in calculating the penalty surcharge to be imposed on the Plaintiff, the Defendant reduced 50/100 of the penalty surcharge calculated as above by taking into account the Plaintiff’s actual ability, the violation at issue on the market, the effect of the violation at issue on the market, and other economic circumstances. This is not deemed to be attributable to the Defendant’s discretion and unfair in relation to the normal participation, and thus, the penalty surcharge to be paid by the Plaintiff would be KRW 101,00,000 as shown in the calculation of the attached Table 5.

Table 5> Calculation of the penalty amount of the Plaintiff

(unit: Won, but less than 00,000 won according to the defendant's calculation method)

Standard amount of budget for the year 2005 budget amount included in the main sentence 】 Standard amount of reduction rate of the defendant 2,039,329 10% 203,932 50% 101,000

Therefore, the disposition imposing the penalty surcharge under Paragraph 3 of the attached list of the defendant is just within the scope of KRW 101,00,000, which is calculated by the defendant's own notice as set by the defendant's own, and the exceeding part shall be revoked since it is deemed that there is an error of deviation and abuse of discretion. Therefore, the plaintiff's claim for this part shall be justified within the scope of the above recognition.

(b) Whether the discretion in the publication is exceeded or abused

The purpose of Article 27 of the Act is to prescribe a public announcement of the fact that the plaintiff's act of this case constitutes a prohibited act of an enterprisers' organization under Article 26 (1) 1 of the Act, considering the purpose of the above system and the above, the defendant's public announcement order ordering the plaintiff to publish the fact that the plaintiff's act of this case constitutes a prohibited act of the enterprisers' organization under Article 26 (1) 1 of the Act is to maintain the effects of the violation despite the defendant's corrective measures due to the lack of information and awareness about the violation of the law, since the effect of the violation continues to exist and damage may continue to occur, the plaintiff's disclosure of important information about the violation of the law by disclosing it as soon as possible (see Supreme Court Decision 2004Du12315, May 12, 2006). Thus, the plaintiff's assertion in this part is without merit.

3. Conclusion

Therefore, the part exceeding KRW 101,00,000 out of the penalty surcharge payment order as stated in the attached Table No. 2006-048 of March 28, 2006 and September 15, 2006 against the Plaintiff as the ruling No. 2006-048 of September 15, 2006, which was issued by the Defendant, is unlawful and revoked, and all the Plaintiff’s claims against the corrective order and the public announcement order as stated in paragraphs 1, 2 of the same Table are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment Order, etc. and Omission of Publication of Examination]

Judges Kim Tae-dae (Presiding Judge)