[1] The legal nature of the imposition of a penalty surcharge against a violator of the Monopoly Regulation and Fair Trade Act (=the discretionary act) and the limitation on the exercise of its discretionary power

[2] The case holding that where three companies Gap, Eul, and Byung who participated in the collusion expressed externally their intent to reverse the agreement on unfair collaborative acts in succession, Byung company's termination period of violation should be deemed to be the date on which Eul company's act is terminated by externally expressing the intention to reverse the agreement

[1] In full view of the 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), the Fair Trade Commission has discretion to determine whether to impose a penalty surcharge for a violation of the Act, and if a penalty surcharge is to be imposed, the Fair Trade Commission has discretion to determine the amount of a penalty surcharge specifically within a specific scope provided by the Act and the Enforcement Decree. Thus, the imposition of a penalty surcharge against a violator of the Act by the Fair Trade Commission is deemed a discretionary act. However, if there is a misunderstanding of the fact that serves as the basis for imposing a penalty surcharge in exercising discretion, or if there is a violation of the principle of proportionality and equality, it is unlawful as a deviation or abuse of discretionary power.

[2] The case holding that the termination date of the violation of Byung company should be deemed as the termination date of the execution act by expressing externally the intention of reversal of the agreement on the unfair collaborative act by Eul, Eul, and Byung company participating in the collaborative act, on the ground that if two companies among the above three companies withdraw from the collaborative act and only one company remain, it would not satisfy the requirement of "the agreement between two or more enterprisers" among the elements for the collaborative act, and the collaborative act is terminated

[1] 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); Article 27 of the Administrative Litigation Act / [2] Articles 6, 17, 22, 24-2, 28, and 34-2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 204); Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 2004Du12315 Decided May 12, 2006, Supreme Court Decision 2006Du8792 Decided June 26, 2008 (Gong2008Ha, 1076)

Attorney Son Ji-yol et al. (Attorneys Son Ji-yol et al., Counsel for defendant-appellant)

Fair Trade Commission (Attorney Choi Byung-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Nu24458 decided July 16, 2008

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal Nos. 2 and 3

In cases where enterprisers have reached an agreement on the basic principles of unfair collaborative acts and have reached several agreements in the course of their implementation, as well as where each agreement has been reached several times for a long time without the agreement on such basic principles, and where it has been continuously and continuously implemented for the same purpose based on a single intention, it is reasonable to see that such a series of agreements, barring special circumstances, have been partially changed in the specific contents or members of each agreement, etc., as a whole, as one unfair collaborative act (see Supreme Court Decision 2008Du17035, Jun. 25, 2009).

Examining the reasoning of the judgment below in light of the records, the court below was just in finding facts as stated in its holding, and the series of actions implemented by three companies, including the plaintiff, with the second agreement of this case, all of which constituted one unfair collaborative act. Accordingly, the first agreement of this case was amended by Act No. 7315 of Dec. 31, 2004 and enforced from April 1, 2005, and the five-year period of prescription under Article 49 (4) of the former Monopoly Regulation and Fair Trade Act (hereinafter "Fair Trade Act") has not elapsed since it was just in accordance with the above legal principles, and there was no error in the misapprehension of legal principles as to the omission of judgment as to the number of unfair collaborative acts, misunderstanding of legal principles as to mistake of facts, and misunderstanding of legal principles as to the prescription of an unfair collaborative act, as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 1

Even in cases where the relevant statute is amended, unless otherwise specified in the transitional provision, an administrative disposition shall be based on the amended law that takes effect at the time of the disposition, and its determination is in principle. Even in cases where the amended law provides for a more unfavorable legal effect than the previous one while its existing facts or legal relations are subject to the application of the amended law, if such facts or legal relations are not terminated before the enforcement of the amended law, it shall not be deemed a retroactive legislation prohibited under the Constitution. With regard to the application of such amended law, in cases where the people’s trust in the existence of the statutes before the amendment is recognized to have greater protection than the public interest demand for the application of the amended law, there is room for its application to protect such public trust (see Supreme Court Decision 2001Du274, Oct. 12, 2001).

The court below acknowledged the facts as stated in its decision after comprehensively taking account of the adopted evidence, based on the fact that the above provision of the Fair Trade Act applies to the application of penalty surcharges to the unfair collaborative act of this case, and the legislative purport of the above Fair Trade Act regulating the unfair collaborative act, etc., it cannot be deemed that the Plaintiff’s trust in the previous Fair Trade Act does not constitute a more protected trust by comparing and balancing with the public interest demand for the application of the above Fair Trade Act and the Enforcement Decree thereof, etc.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to retroactive application of law as otherwise alleged in the ground of appeal.

3. As to the grounds of appeal Nos. 4 and 5

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 if a penalty surcharge is to be imposed, the amount of a penalty surcharge shall be determined within a certain scope prescribed by the Act and the Enforcement Decree. 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 misconceptions of the facts that form the basis for imposing a penalty surcharge in exercising such discretion, or violates the principle of proportionality and equality, it is illegal as a deviation or abuse of discretionary power (see, e.g., Supreme Court Decisions 204Du12315, May 12, 2006; 2006Du8792, Jun. 26, 2008).

In this case where the non-party 1 corporation and the non-party 2 corporation (hereinafter "non-party 2 corporation") expressed externally their intent to reverse the agreement on the unfair collaborative act of this case on September 14, 2005, and September 22, 2005, the court below determined that the plaintiff September 27, 2005, on September 27, 2005, on which the plaintiff expressed his intention to reverse the agreement externally, and the court below determined on September 27, 2005, on the completion date of the act.

However, if two of the three companies participating in the collusion as above are recognized to have withdrawn from the collusion, only one company remains. In such a case, it cannot satisfy the requirement of “the agreement between two or more enterprisers” among the requirements for establishing the collusion, and it is reasonable to view that the collusion has been terminated.

Therefore, although the termination period of the Plaintiff’s violation should be seen as September 22, 2005, which was the date on which the execution of the agreement was completed by Nonparty 2’s externally expressing the intention of reversal of the agreement, the court below judged September 27, 2005 as the termination date of the Plaintiff’s violation. The court below erred by misapprehending the legal principles as to the termination date of the violation, and it is obvious that such violation affected the judgment.

4. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)