2014Du1113 Revocation of a corrective order

Hanjin Industries Co., Ltd.

Fair Trade Commission

Seoul High Court Decision 2012Nu28973 Decided July 9, 2014

September 10, 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 plaintiff's appeal is dismissed.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

A. Regarding ground of appeal No. 1

The court below determined that the construction companies belonging to the existing SK construction consortium were incorporated into the existing modern construction consortium between January 2009 and April 2, 2009, thereby forming an integrated consortium consisting of the plaintiffs, etc. with respect to the instant four projects, and furthermore, with the lead of modern construction, the shares of the construction companies belonging to the integrated consortium were determined, and the construction companies belonging to the integrated consortium, such as the plaintiff, etc., were aware that all or part of the instant four major projects will be carried out as financial projects around April 2009, and that the construction companies belonging to the integrated consortium, such as the plaintiff, etc., were aware that all or part of the instant four major projects will be carried out as financial projects, and therefore, they could fully recognize the fact that the plaintiff agreed to participate in the instant collaborative act with a certain share divided by construction companies.

In light of the records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence.

B. As to the grounds of appeal Nos. 2 and 3, whether a collaborative act restricts competition as provided by Article 19(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) should be determined individually by examining whether the collaborative act affects or is likely to affect the determination of price, quantity, quality, and other terms and conditions of trading by reducing competition due to the collaborative act, taking into account various circumstances such as the characteristics of the relevant product, consumers’ standard for choosing products, impact of the relevant act on the market and enterprisers on the competition (see, e.g., Supreme Court Decisions 2010Du10471, Jun. 14, 2012; 2012Du1773, Nov. 28, 2013).

In full view of the circumstances stated in its holding, the lower court determined that the instant collaborative act constitutes an act that unfairly restricts competition by allocating construction volume of the instant 4th class project, and further, determined that the Defendant’s corrective order against the Plaintiff was unlawful as it was an act that deviates from or abused discretion, in light of the apparent effect of restricting competition in the instant collaborative act, gravity of violation, etc.

In light of the aforementioned legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, the court below erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on

No error may be found.

2. In light of the purport of the Defendant’s grounds of appeal under the Fair Trade Act, it is reasonable to interpret that the contents of the corrective order may order the prohibition of repeated acts of the same type that may be repeated in the near future (see Supreme Court en banc Decision 2001Du5347, Feb. 20, 2003; Supreme Court Decision 2010.

11. 25. See, 2008Du23177, etc.)

The lower court determined that, although the Plaintiff participated in the instant collaborative act, the part prohibiting “Agreement on the Construction Tools to be awarded a successful tender” among the Defendant’s corrective order against the Plaintiff cannot be deemed to constitute a measure necessary for correcting the act of violation, the part prohibiting the Plaintiff’s participation in the agreement on allocating 13 construction sections except for the 15 construction sections among the 15 construction sections of the instant 4th River project, including Hyundai Construction, and it is difficult to view that the Plaintiff participated in the agreement on allocating 13 construction sections from among the 15 construction sections of the instant 4th River project.

However, according to the reasoning of the judgment below, the collaborative act of this case is an agreement to allocate the total quantity of the construction works of this case to the equity ratio, and the agreement to allocate the construction sections for the construction works of 13 sections among the entire construction works of the 4th project of this case based on the collaborative act of this case, which are closely related to both. Furthermore, considering the characteristics of the construction works ordered by the government or public institutions that most of the participation of the construction companies are bound to be awarded through bidding, the "agreement on the construction sections to be awarded a successful tender" is one of the representative means of unfair collaborative acts as stipulated in Article 19 (1) 3 of the Fair Trade Act that restrict the market supply quantity by allocating the supply quantity for each construction company.

In light of the above legal principles, the "agreement on construction tools to be awarded a successful tender" is likely to be repeated in the near future as acts identical to the collaborative act of this case recognized by the plaintiff's violation of the Fair Trade Act. Thus, it is reasonable to view that the defendant can issue a corrective order to prohibit the repeated act of this case.

Nevertheless, the lower court determined that the Defendant could not issue a corrective order related to the Plaintiff’s violation of the Fair Trade Act relating to “Agreement on Construction Tools to be awarded a successful bid.” In so doing, the lower court erred by misapprehending the legal doctrine on the scope of the corrective order, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal assigning this error

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. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il

Justices Min Il-young

Justices Park Poe-young

Justices Kim Jae-han