207Du4742 Revocation of corrective action, etc.

1. A stock company;

Seoul IOET

Representative Director Kim

2. A stock company;

Seoul OLIVE DE INTER

Article 14

3. III Stock Company:

ECE

Fixed representative director

[Defendant-Appellant] Plaintiff 1 et al., Counsel for defendant-appellant

Attorney Yellow, DooD, E, this

Fair Trade Commission

Representative Chairperson White-ho

Law Firm Doz.

[Defendant-Appellant]

Organization and Coordination of Litigation Performers

Seoul High Court Decision 2004 - 17183 Decided January 17, 2007

April 9, 2009

All appeals by the plaintiffs and the defendant are dismissed.

The costs of appeal are assessed against each party.

The grounds of appeal are examined.

1. Regarding the plaintiffs' grounds of appeal

A. As to the first ground for appeal, if the Fair Trade Commission proves two indirect facts of "an act falling under any of the subparagraphs of Article 19 (1) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004; hereinafter "the Act") and "an act practically restricting competition in a certain transaction area" (hereinafter "competitive act"), it is presumed that the enterpriser has agreed to engage in such collaborative act (see, e.g., Supreme Court Decisions 9Du6514,6521, Mar. 15, 2002; 2004Du3045, Dec. 7, 2006).

In full view of the adopted evidence, the court below acknowledged the fact that 10 construction companies, including Plaintiff IT Co., Ltd., Plaintiff Co., Ltd., and Plaintiff Co., Ltd. (hereinafter referred to as “instant companies”) sold apartment houses with 8,554 households (hereinafter referred to as “the apartment houses of this case”) located within 8,554 households located within the Dong dong-si District Development District (hereinafter referred to as the “Dong dong-si District”), between July 25, 2003 and August 5, 2003, the court below acknowledged the fact that all companies, including Plaintiff Co., Ltd., Ltd., Ltd., and Plaintiff Co., Ltd., Ltd., set the payment system for the apartment of this case, including the intermediate payment payment system and the late payment system for the apartment of this case, are presumed to have been unfair collaborative acts under Article 19 (1) 2 of the Act.

The Court determined that the case was.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence and misapprehension of legal principles as to the presumption of agreement of unfair collaborative acts, as otherwise alleged in the

B. On the second ground of Article 19(5) of the Act, when determining circumstances in which enterprisers, who are presumed to have agreed to engage in unfair collaborative acts under Article 19(5) of the Act, may reverse presumptions of agreement on unfair collaborative acts, a reasonable determination shall be made in accordance with the trade norms by comprehensively taking into account the characteristics and status of the market in the field of trade of the product in question, the characteristics and patterns of the product, the distribution structure, the structure of pricing, the structure of prices, the impact on the market price, the position of each individual enterprise in the same field of trade, the impact of the price changes on the individual enterprise's operating profit, market share, etc., the legitimacy of the business judgment, the actual state of direct communication, such as mutual meetings of the enterprise, etc., the degree of probability that the agreement may be reached even without consultation, the experience of price reduction and legal violation, and the background of the prevailing economic policy (see Supreme Court Decision 2004Du8323, Nov. 23, 2006).

The court below rejected the plaintiffs' assertion that the presumption of an unfair collaborative act agreement would be mitigated on the ground that the company of this case, in light of the circumstances stated in its holding, has no evidence to find that the company of this case's implementation of a tables after the intermediate payment interest and post payment was conducted independently in accordance with each company's business judgment without any agreement or necessity, or that there was no circumstance to believe that it was not a collaborative act under the agreement.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence and misapprehension of legal principles as to the reversal of presumption of agreement as otherwise alleged in the ground of appeal.

C. On the third point, the related market, which is defined as the premise of the determination of the unfair collaborative act as prescribed by the Act, shall be determined by comprehensively considering the similarity of function and utility of the goods subject to the transaction, the purchaser's awareness of the substitution possibility, and the form of management decision related thereto (see Supreme Court Decision 2004Du14564, Nov. 9, 2006, etc.).

The court below shall assume the risk of new apartment sale as an investment asset at the latest and at the time of its occupancy.

Considering the characteristics of the product, the scope of qualified consumers, the non-alternativeness of demand for the right to sell an apartment before the occupancy in the existing apartment or after the sale of the apartment, and the non-carbonity of the supply of a new apartment after the sale in the large-scale housing site development zone, etc., the new apartment after the sale of the apartment cannot be deemed to be larger than that of the new apartment after the occupancy in the existing apartment or after the sale of the apartment after the sale of the apartment, so the product market of this case is defined as the "new apartment market" and, in the case of an apartment sold by a large-scale housing site development zone, it can be seen that apartment can be divided by the district where the apartment site is located, considering the characteristics of the apartment with various administrative, educational, and convenience facilities in the housing site development zone. At the same time, considering the comprehensive consideration of the fact that there is no large scale of sale in the neighboring area other than the Dong Ba area, the relevant geographical market of this case

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 the determination of related market.

2. According to the reasoning of the judgment of the court below as to the defendant's grounds of appeal, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence. In light of the following, it is difficult to determine that the usual sale price of the apartment of this case is "before and after 1.7 million won", and in addition, the final sale price of the apartment of this case is "one million won" through the highest price, and it is difficult to determine that the apartment of this case's sales price is "one hundred and after 1.7 million won," and the apartment of this case's final sale price is at least 6.37 million won per square to the highest price of 7.7 million won per square, and even if it is subdivided into similar horizontal apartment, it is considerably large from 4.8 thousand won per square to 960,000 won, compared with the total sale price among similar ordinary apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case.

In light of the above legal principles as to the presumption of agreement on collaborative acts, the above judgment of the court below is just, and it is not erroneous in the misapprehension of legal principles as to the presumption of agreement on collaborative acts, as otherwise alleged in the ground of appeal, in light of the following facts: even if each of the companies of this case excludes stock companies with very strong individual characteristics, the average selling price of each of the companies of this case is distributed in various amounts from 40,000 to 761.10,000 won.

3. Conclusion

Therefore, all appeals by the plaintiffs and the defendant are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon

Justices Kim Young-young

Justices Kim Gi-hwan

State Justice Cha Han-sung -