Revocation, such as a corrective order, etc.

Postal Drugs Co., Ltd.

Fair Trade Commission

Seoul High Court Decision 2012Nu11210 Decided January 9, 2013

June 11, 2015

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 2 and 3, the lower court determined that the instant agreement was made only after the date following the date on which the tender was held in 2006, and thus, the bidding price in 2006 did not have an effect of restricting competition that affects or is likely to affect the decision of successful bidding price, etc. In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles as to the determination of the relevant market and competition limitation

2. As to the ground of appeal No. 1, the lower court determined that the Defendant’s order to pay a penalty surcharge should be revoked on the ground that the agreement in this case was not subject to the tender in 2006, but cannot be deemed to have caused competition-restricting effect in 2006, and that the Defendant’s measure, including the relevant sales for calculating the penalty surcharge, was unlawful.

However, according to the records, it is evident that the Plaintiff did not supply the drugs by bidding in 2006 to the Ulsan National University Hospital, and the Defendant did not include the relevant sales for the calculation of penalty surcharges in the supply of drugs by bidding in 2006.

Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the imposition of penalty surcharges or by misapprehending the fact, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

A person shall be appointed.