ES Gas Co., Ltd. (Bae & Yang LLC, Attorneys Jeong Young-mo et al., Counsel for the plaintiff-appellant)

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

Defendant 1 and eight others (Law Firm Dasan et al., Counsel for the defendant-appellant)

April 26, 2012

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit shall be borne by the Plaintiff, including the costs incurred by participation.

The Defendant’s revocation of the remainder of the corrective order stated in attached Form 1, which was issued by the Plaintiff on April 23, 2010, and the penalty surcharge of KRW 198,737,00,000,000, which was not revoked or amended by the Decision No. 2010-046, which was issued by the Defendant against the Plaintiff on April 23, 2010, and the Defendant’s revocation of the disposition of rejection of reduction of KRW 9,368,00,000, which was issued against the Plaintiff on April 23, 2010 by the Decision No. 2010-046.

1. Details of the disposition;

A. The plaintiff's status

The Plaintiff is a company that imports and sells liquefied petroleum gas (hereinafter referred to as “LPG”) and constitutes a business entity under the Monopoly Regulation and Fair Trade Act (hereinafter referred to as “Fair Trade Act”). SK (hereinafter referred to as “SK”) is a business entity under the Monopoly Regulation and Fair Trade Act (hereinafter referred to as “Fair Trade Act”). By July 1, 2007, while carrying on oil refining business and petroleum chemical business, the Plaintiff newly established and divided and divided the LPG production and sales business, and thereafter, it carries out oil refining business, including LPG production and sales business. The Plaintiff, SK, and SK Energy are all affiliated companies of the SK enterprise group (hereinafter referred to as “Plaintiff, etc.”).

B. Characteristics of domestic LPG sales markets

1) Types and characteristics of LPG

LPG is classified into propane (C3H8) and butane (C4H10). This is produced by separating gas incidental to the extraction of crude oil or natural gas, or by recovering gas generated by by by-products in the process of refining crude oil in a oil refining plant, or in the process of heating and decomposition in a petroleum chemical plant. LPG sold in the Republic of Korea is very different in quality if it satisfies certain ingredients, content, etc.

(ii) the non-shotability of the demand for the price;

The concept of base price and selling price is used in the LPG sales market. The base price is calculated according to the formula of price calculation prepared by the importer, and the selling price is the price that the LPG seller sets the base price as the index and notifies its customers, such as the charging station, etc. taking into account the market conditions or competition conditions. Propane is mainly used for cooking and heating fuel (domestic and commercial) in a household, restaurant, etc. where urban gas (LNG) is not supplied, approximately 7.3 million in an area where urban gas (LNG) is not supplied, and but butane is the mass fuel mainly used by ordinary people. As seen earlier, LPG is the only competitive means because of the difference in quality. Although LPG as well, consumers of propane or sub-ane do not actually have different substitutions, and thus, it is very low in the demand of suppliers for consumption, apart from the characteristics of each supplier itself.

3) Status of the domestic LPG industry

A) The point system of six companies

In order to enter a new domestic LPG sales market, a huge amount of capital input and a long-term period of time is required due to having certain refining facilities and large-scale storage facilities under the relevant Acts and subordinate statutes, and securing a nationwide sales network. Accordingly, the domestic LPG sales market is an institutional or practical part of high barriers to entry. As a result, the domestic LPG sales market was re-converted into two imported companies and four oil refineries in the 1980s, and the Plaintiff and EPG Co., Ltd. (hereinafter referred to as “E1”) maintained the market share of the Plaintiff and EF (hereinafter referred to as “S-O”) up to 10% market share of the company, which is close to the 10% market share of the company without any new entry system.

(b) the domestic LPG supply and sale;

The domestic LPG supply consists of most of the two imports and oil 4 companies. As of the year 2008, the domestic output is 39.6%, the import volume is 60.4%, and the import volume is 20.2%. The import company imports and sells the LPG from a foreign country and does not independently produce the LPG. On the contrary, the 4 companies are not importing the LPG from a foreign country.

The significant portion of LPG imported by the two companies is sold to filling stations, petroleum chemical companies, etc. while selling part of oil to three companies, such as GSknex, S-Otil, and Hyundai Myil Bank, and the Plaintiff sells to three companies, such as SK Energy, S-Otil, and Hyundai Myil Bank. From 2004 to 2008, the volume sold to three companies, such as GSknex, etc. is about 31.8% of the average total sales volume, and for the same period, the volume sold by the Plaintiff to three companies, such as SK Energy, etc., is 2.1% of the total sales volume.

The 4 companies supplying oil sell the quantity produced in the process of refining crude oil and the quantity purchased from two import companies as above. The ratio of the quantity self-produced from among the LPG volume sold by 4 companies is 53.6% average prote for five years from 2004 to 2008, 63.1% for butane and 60.9% for the entire LPG volume.

C) Market share in the domestic LPG sales market

The market share in the domestic LPG sales market on the basis of the quantity sold through the LPG charging station is as follows:

본문내 포함된 표 (단위 %) 회사＼연도 2003 2004 2005 2006 2007 2008 원고 25.3 26.2 27.2 27.6 27.9 28.7 E1 17.5 17.9 18.1 19.9 20.9 22.9 SK에너지 20.8 20.1 19.8 18.8 18.5 18.3 GS칼텍스 18.5 18.1 17.4 17.3 18.4 17.3 S-Oil 10.2 10.6 10.5 9.9 8.3 7.6 현대오일뱅크 7.7 7.2 7.0 6.5 6.0 5.1

4) Determination of LPG prices

A) Price fixing up to January 1, 2003

(i) Transfer of price liberalization on January 2001

By February 1, 1969, the government enacted a fixed price system publicly notified by the Government with respect to the LPG price, and fixed the price, from February 1, 1969 to December 2, 200, implemented a “Government publicly notified maximum price system,” and decided the selling price at a level below the maximum price publicly notified by the business operators. However, the government implemented a non-working system with raw materials that makes it possible for the business operators to adjust the price according to changes in the international price or exchange rate.

Shelled from January 1, 2001 to December 31, 2002

Since January 1, 2001, the liberalization of the LPG prices came into effect, so business operators can freely determine the LPG prices. However, the two importing companies decided the LPG prices at the same level every time by calculating the prices using the official formula and index of the raw material non-working system used by the government by December 2, 2000. Moreover, as LPGs are produced together with other petroleum products in the crude oil refining process, it is difficult to calculate the cost only to the LPG prices on the grounds that it is difficult to calculate the cost.

Accordingly, on October 2002, the defendant issued a corrective order and a penalty surcharge payment order on the ground that two importing companies conspired with the LPG sales price, but the oil refining companies were excluded from the subject of sanctions on the ground that there is insufficient evidence to prove that they participated therein.

B) Price fixing after January 1, 2003

After receiving sanctions from the Defendant, the two importing companies decided and publicly announced the LPG selling price from January 2003, taking into account the market situation and competition situation, focusing on the base price on December 30, 2002, after preparing the self-calculated standard price formula after receiving sanctions from the Defendant. The two importing companies immediately notified the price to the charging station, etc. and the four companies by facsimile, and the remaining four companies determined their selling price based on this, and the price was determined in the same way as the price was determined for two years after the measures to liberalize price were taken in 2001.

C. Defendant’s corrective orders, payment order of penalty surcharges, and decision on application for reduction and exemption

1) The defendant's grounds for each decision

(A) corrective order and penalty surcharge payment order;

The Defendant agreed on the selling price from the end of December 2002 to the end of December 31, 2008 by exchanging or consulting on the information on the LPG base price and selling price, and notified the sales price, etc. to the 4 company in full with the expectation that the sales price should be determined according to their own prices, and the sales price, etc. was determined in fact by both the two companies in full and the four companies in full. Thus, the Defendant determined that it constitutes an unfair collaborative act as stipulated in Article 19(1)1 of the Fair Trade Act.

(b)decisions on applications for reduction;

The plaintiff asserted that the plaintiff should be recognized as the status of the investigating partner on the ground that the defendant applied for joint reduction and exemption along with SK and SK Energy when the defendant started the investigation on the collaborative act in this case, and that the plaintiff is an affiliated company in actual control with SK, SK Energy, but the defendant determined that the plaintiff is a second-class investigating partner under Article 35 (1) 3 of the Enforcement Decree of the Fair Trade Act, unlike SK and SK Energy.

2) Details of the defendant's disposition

A) a corrective order

The defendant issued a corrective order to prohibit unfair competition in the LPG sales market through the LPG price agreement as shown in attached Form 1 against two importing companies including the plaintiff and four oil companies, and to not exchange or provide information on the decision-making plan of the LPG sales price or the decision-making decision-making.

B) An order to pay penalty surcharges

On January 1, 2003, when the price agreement of the plaintiff et al. was enforced, the defendant calculated on December 31, 2008, which began to cause a gap in the selling price as of January 1, 2003, as of December 31, 2009, by the completion date of the collaborative act, the amount of the relevant sales during the period was calculated as KRW 5,162,02,650,00, and then the standard rate for imposition was 7% when considering very serious violations of the collaborative act in this case, the defendant set the base rate for imposition as 361,340,186,000 as the basic penalty surcharge. The defendant did not adjust the amount as of January 1, 2003 because there was no reason to consider in the stage of compulsory and discretionary adjustment, and in consideration of the plaintiff's ability to bear the penalty surcharge and the purport of imposing the penalty surcharge, the penalty surcharge was imposed as KRW 198,737,00,000.

C) Determination and rejection of mitigation;

As to the corrective order, the Defendant issued the order without being exempted from both the Plaintiff, SK and without being exempted from all of them, and with respect to the penalty surcharge, the Defendant exempted the Plaintiff from the penalty surcharge, and changed the first penalty surcharge to KRW 9,368,00,000 by reducing only 50% on the ground that the Plaintiff was the investigating co-offenders. Ultimately, the Defendant maintained the first corrective order against the Plaintiff, and the first penalty surcharge payment order was to be mitigated by deducting the portion of the amount in the modified penalty surcharge payment order from the remainder (hereinafter “instant disposition” after adding the corrective order and the penalty surcharge payment order maintained after the Defendant’s mitigation decision, and the Defendant issued a disposition rejecting the part regarding the Plaintiff’s application for reduction and exemption and the remainder of 50% penalty surcharge that has not been mitigated.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 4, the purport of the whole pleadings

2. Whether the revocation of the instant refusal disposition is legitimate among the lawsuits in this case

In order to become an administrative disposition against which a refusal by an administrative agency which has received a request from a citizen is an administrative disposition, a citizen must have the right to request the administrative agency to perform an administrative act in accordance with the request, and in case where an administrative agency refuses to accept a request from a citizen without such a ground and refuses to do so, such refusal does not affect the applicant's right or legal interest, and it cannot be deemed an administrative disposition subject to an appeal litigation (see Supreme Court Decision 96Nu1597 delivered on September 5, 197).

The Fair Trade Act provides that the defendant may take corrective measures or reduce penalty surcharges to those who have filed a voluntary report on unfair collaborative acts, investigators, etc., and the Enforcement Decree of the same Act provides for the scope, standards, and level of reduction or exemption. As such, the business operator who filed an application for reduction or exemption, like the plaintiff, has a legal right to seek reduction or exemption under the above Fair Trade Act and the defendant'

Meanwhile, in a case where an administrative agency issues a payment order to a person liable for payment and reduces the amount of a penalty surcharge on the grounds of a defect in the payment order, the substance of the reduction order is changed, and the part remaining after the reduction order remains illegal, the subject of appeal litigation is not the subject of appeal litigation in itself. However, in this case, inasmuch as the defendant accepted only part of the plaintiff's application for reduction that the person asserts that he/she is a joint investigation partner, it is recognized that he/she is the second investigation partner, the subject of appeal litigation is legitimate, and thus, the subject of appeal litigation is different from the grounds of the remaining corrective order and the instant disposition that is the payment order. Accordingly, the part that seeks revocation of the rejection disposition in this case among the lawsuit in this case is legitimate.

3. Whether the disposition of this case and the rejection disposition of this case are legitimate

A. The plaintiff's assertion

1) Joint reduction and exemption claims

For the following reasons, the status of the first survey partner should be recognized even for the Plaintiff who applied for joint reduction or exemption with the SK and SK Energy.

① The meaning of “affiliated company in a de facto control relationship” (proviso of Article 35(1)1 (a) of the Enforcement Decree of the Fair Trade Act as the requirement for joint reduction and exemption is identical to that of “company in a de facto control relationship” (Article 2 subparag. 2 of the Fair Trade Act and Article 3 of the Enforcement Decree of the same Act) with respect to the scope of an enterprise group, and thus, an affiliate in the same enterprise group shall be deemed an affiliate in a de facto

② Even if the requirement that it should be an affiliated company within the same enterprise group ought to be more practically controlled, the Plaintiff may be deemed to have a substantial control relationship with SK, and SK, taking into account the ownership of the Plaintiff, etc., exchange of executives and employees, preparation of consolidated financial statements, execution of the Plaintiff’s accounting and business audit, approval of the Plaintiff’s major business decision-making decision-making, and recognition of the Plaintiff, competitors, consumers, etc.

③ The legislative intent of recognizing joint reduction and exemption is that, in case of an affiliated company in a de facto controlling relationship, it is difficult to fully cooperate when only individual evidence is submitted because there are many cases in which information is shared, and it is difficult to obtain additional information from another business operator because of the exhaustion of both 1 and 2 when each of the affiliated companies files an application for reduction and exemption. Therefore, it is necessary to recognize the status of the same applicant for reduction and exemption

2) The allegation of illegality in the penalty surcharge payment order

The instant penalty surcharge payment order is unlawful for the following reasons.

① From February 2008 due to the government’s price control policy around 2008, the Plaintiff took measures to reduce the price from February 2008, and from April 30, 2008, from around 2008, GSSex’s independent pricing, the collaborative act of this case was terminated on January 31, 2008 or April 30, 2008. Nevertheless, the Defendant calculated the penalty surcharge by deeming the termination date of the collaborative act of this case as December 31, 2008. Family affairs, even if there was an agreement on collaborative act after January 31, 2008 or April 30, 2008, the agreement was not implemented thereafter, but the Defendant did not take into account such circumstances.

(2) The sales in the direct seller and the Korea Gas Corporation for the purpose of heating-saving shall determine the price conditions through individual negotiations for each customer. Therefore, the sales in the direct seller and the sales in heat-saving shall not be deemed to have been affected by the instant collaborative act. Therefore, the sales in the above part shall be excluded from the relevant sales.

③ In light of the Plaintiff’s unjust enrichment level, actual ability to bear penalty surcharges, and the structural characteristics of the LPG industry, applying the imposition standard rate of 7% to the Plaintiff and reducing the amount of 45% to the Plaintiff, unlike the Plaintiff’s four occasions at the imposition of penalty surcharges, is contrary to the principle of equity or proportionality.

B. Relevant statutes

Attached Table 3 shall be as stated in the relevant statutes.

C. Determination

1) Whether the collaborative act of this case was recognized

In addition to the aforementioned evidence and the purport of the entire pleadings, the Plaintiff consulted with E1, an identical importer, through the exchange of monthly base price information, brought about regular and irregular meetings of executives and employees, despite the difference in the base price, the LPG sales price was almost uniform as shown in attached Table 4, and the two importing companies, including the Plaintiff, notified the price to 4 companies of the fixed oil, and accordingly, the 4 companies, such as SK Energy, S-Otil, and Hyundai Daily Bank, decided the sales price as listed in attached Tables 5 and 6, and three companies of fixed oil such as GSk-Tex, S-Otil, and Hyundai Daily Bank, etc. were identical or similar to the Plaintiff, and 3 companies of fixed oil such as 5 companies have made efforts to prevent the sale price from 20 companies of imported oil and 4 companies, thereby maintaining the 2G market price of imported oil and 24 companies' joint efforts to prevent the sale price of the 5 companies of imported oil.

In light of the above facts and the fact that the Plaintiff voluntarily applied for reduction and exemption of this case, it is recognized that the Plaintiff restricted competition and the illegality is also recognized by comprehensively taking account of the following: (a) the Plaintiff committed a collaborative act with the importer E1 and 4 companies by knowing that the sales price determined after consultation with E1 by the method of exchange of base price, and notifying the importer of the price, and (b) the content of the collaborative act and the market share of the participants are almost 10%; and (c) the duration of the collaborative act reaches six years.

2) Whether the instant refusal disposition is legitimate (whether to recognize joint reduction or exemption)

A) The attitude of the current reduction and exemption system

Article 22-2 of the Fair Trade Act provides that corrective measures and penalty surcharges may be reduced or exempted for those who have filed a voluntary report on collaborative acts and investigators, and that matters concerning the specific scope of, standards for, and the degree of, reduction or exemption shall be prescribed by Presidential Decree. Article 35 of the Enforcement Decree of the same Act provides that the defendant shall determine and publicly notify matters concerning the degree of reduction or exemption, including the provision of evidence necessary to prove collaborative acts, the statement of all relevant facts, the good faith cooperation until investigation is completed, and the suspension of

In principle, the current system of reduction or exemption is a sole report. This is because, if a joint report is recognized, it is likely to be granted reduction or exemption by means of collusion and voluntary report by the business operators participating in the unfair collaborative act. However, in the case of an affiliated company in a de facto control relationship, a joint report is exceptionally granted (see Supreme Court Decision 2010Du2548, Sept. 9, 2010). Here, the interpretation of “affiliated company in a de facto control relationship” is problematic, and Article 4-2(1) of the Public Notice of Operation of the System of Reduction or Exemption (hereinafter “Public Notice of Reduction or Exemption”) defines the meaning of a de facto control relationship.

B) Criteria for determining the substantial control relationship

(i)The legal nature of the notice of reduction and exemption;

Article 35(4) of the Enforcement Decree of the Fair Trade Act delegates only more restrictive matters to the Fair Trade Commission by stipulating that “the scope of persons subject to mitigation or exemption, the standards for mitigation or exemption, and the degree of such reduction or exemption, etc.” (Article 35(1)1(a) of the Enforcement Decree of the Fair Trade Act provides that “where two or more enterprisers involved in the collaborative act jointly provide evidence, they shall be deemed to have provided the said evidence if they are affiliated companies in a de facto controlling relationship, or companies involved in the division of company or the transfer of business, etc.” (Article 4-2) provides that “The requirements prescribed by the Fair Trade Commission shall be determined and publicly notified by the Fair Trade Commission” (Article 35(1)1(a) of the Enforcement Decree of the Fair Trade Act provides that “where a business operator who jointly provides evidence is a party to the division or transfer of business, the said person shall be deemed to have provided the said evidence.”

In light of the attitude and scope of delegation legislation of the Enforcement Decree of the Fair Trade Act, and the purport and content of the provision of joint reduction and exemption regulations under the Enforcement Decree of the same Act, and the content thereof, the “requirements prescribed by the Fair Trade Commission” under the above Enforcement Decree, as well as the “requirements prescribed by the said Enforcement Decree,” cannot be said to require the case of a “affiliated company in a de facto control relationship” as to whether only the requirement is required by the company involved in division or transfer of business of the company” in the latter part. Therefore, considering the form of the provision of public notice of reduction and exemption and the scope of delegation of the above Enforcement Decree, at least the public notice of reduction and exemption in a de facto control relationship is an administrative rule having the nature of the rules of normative interpretation. However, the above public notice of reduction and exemption has the character of presenting the interpretation standard of “actual control relationship” under the Enforcement Decree of the Fair Trade

Whether the provisions of the business group are invoked or not

Article 2 subparag. 3 of the Fair Trade Act provides that “If two or more companies belong to the same enterprise group, each company shall be affiliated with the same enterprise group.” Article 2 subparag. 2 of the same Act provides that an enterprise group is “a group of companies having de facto control over the business matters” of the same person, either directly or through the same person related persons. The term “company having de facto control over the business matters” refers to a case where the same person related to the same person owns more than 30% of the total number of stocks, or the so-called requirements for control are met (Article 3 of the Enforcement Decree

However, the provisions on the meaning of “company in de facto control of its business contents” related to an enterprise group are intended to determine the scope of the enterprise group subject to regulation such as prohibition of mutual investments and prohibition of debt guarantees against an enterprise group larger than a certain size, and thus, it cannot be invoked as it is for the interpretation of substantial control relationship to determine whether to recognize joint reduction or exemption, notwithstanding the similarity of language

In addition, in cases where the above provision is invoked, it would be permissible to jointly reduce and exempt if it belongs to the affiliate, and it cannot be invoked in that it makes the requirement of “actually controlling relation” added in front of the affiliate.

【Real domination Criteria of Control Relationship

① The Fair Trade Act requires strict interpretation of the requirements, even in light of the legislative intent of enhancing the effectiveness of voluntary declarations through a joint application. ② The criteria for the examination of collaborative acts and the announcement of reduction and exemption of “actual control relationship” with respect to “act of a single business entity” are the same; ③ if affiliated companies are in practical control relationship, they act in the direction to maximize the common interests of two companies rather than mutual competition; ④ even if affiliated companies do not compete with each other, there are cases where one company allows another company to engage in collaborative acts, or where other companies participate in collaborative acts except affiliated companies in practical control relationship, there are cases where one company allows another company to engage in collaborative acts, and where one company participates in collaborative acts, and there are cases where another company participates in collaborative acts, and ⑤ The same proviso in balance with the latter part of the proviso of Article 35(1)1 (a) of the Enforcement Decree of the Fair Trade Act is interpreted to be limited to cases where the pertinent affiliated company is in a dominant relationship with another affiliated company, and ultimately, the criteria for substantial control relationship can be considered as one of the cases where one of the affiliates is in practical control relationship.

Therefore, it is reasonable to view that a business entity among affiliated companies owns 100% of the shares of another business entity, as well as a case where one business entity among affiliated companies owns 100% of the shares of another business entity, in full view of the probability of independent decision-making on the ratio of stocks held by executives, whether executives concurrently, whether accounts are integrated, whether daily instructions are given, whether sales conditions, etc., the nature of the pertinent case, the pertinent market situation, the perception of business competitors, and the business activities of the pertinent business entity, etc.,

C) Determination of the substantial control relationship

In this case, from January 1, 2003 to July 1, 2007, the relationship between the Plaintiff and SK and the Plaintiff from July 1, 2007 to December 31, 2008 is a matter of relationship between the Plaintiff and SK Energy. Since there is no dispute between the Plaintiff et al. that the Plaintiff et al. did not own 100% shares, it is examined whether the relationship can be recognized as a substantial control relationship.

According to the evidence evidence evidence Nos. 9, 13 and 16, 19, 20, 22, 23, 26, 31 and 37, the plaintiff et al. is an affiliated company belonging to the SK enterprise group whose largest member is the same person and pointed out the need to adjust the business territory at the level of the enterprise group in carrying out its business activities, and is managed by the affiliated company management regulations of the SK enterprise group, and a former executive officer of SK and SK Energy has become an executive officer of the plaintiff, and cooperation has been made within the reasonable scope of business activities, such as crude oil and natural gas development projects, promotional and promotional events, charging management, etc.

However, the Plaintiff, as an importer, has a cost structure at all different from the LPG sales, which are products produced in the process of refining raw milk as a static product. Accordingly, if the price is set based on each cost structure, the price difference would inevitably occur, and the price would be a competitive relationship unless the price is adjusted in advance in the LPG sales market, which is almost the only competitive means. In fact, after the period of the instant collaborative act, the Plaintiff and the SPG sales price were not reached any consultation on the LPG sales price, and is set independently. In addition, after the period of the instant collaborative act, the Plaintiff was holding the Plaintiff’s shares through SKNnn loan or SG&S and owned the Plaintiff’s shares, but the ratio did not exceed 50%, and the Plaintiff et al. did not hold concurrent offices, but the Plaintiff et al. prepared the consolidated financial statements in accordance with the Act on External Audit of Stock Companies, and thus, the Plaintiff et al., as well as the Plaintiff et al., having been operating the 2G market.

2) Whether a penalty surcharge payment order is lawful

A) Termination date of the instant collaborative act

In order to terminate an unfair collaborative act, some enterprisers who participated in the agreement must express or implied declaration of intent to withdraw from the agreement to another enterpriser, and shall make an act contrary to the agreement, such as reducing the price at the level that would have existed without collusion, according to their independent judgment (see Supreme Court Decision 2009Du4159, Apr. 14, 201).

If Gap evidence No. 1, Eul evidence No. 1-2, Eul evidence No. 7 and No. 11 added the purport of the entire pleadings, the plaintiff's assertion in this case was taken a price reduction measure from February 2008, and from April 2008, GSCx decided the selling price after consultation with the plaintiff's base price exchange, and notified the price to the fixed price. The plaintiff's assertion that the selling price was similar at the time of the plaintiff's assertion. The plaintiff and E1 jointly responded to the act of GSCx for the purpose of maintaining the existing collaborative act, and the plaintiff's own application for reduction or exemption was made for the same period as the defendant's decision. Accordingly, the plaintiff's assertion that the collaborative act in this case was terminated on January 31, 2008 or since April 30, 2008 or that the above act was not conducted after the above act was not conducted is without merit.

B) Calculation of relevant sales (direct sales office, the Korea Gas Corporation’s sales portion)

The Plaintiff voluntarily recognized that the LPG sales price for the Korea Gas Corporation and the direct seller for the purpose of saving heat for the purpose of the instant collaborative act was calculated based on the general sale price subject to the instant collaborative act, taking into account special circumstances, such as transportation cost, facility usage fee, and price discount. Therefore, the LPG price for the above sales portion would have a direct impact on the sales price determined by the instant collaborative act. Meanwhile, the LPG price for the said sales portion would be directly affected by the sales price determined by the instant collaborative act. Meanwhile, there is no discrimination between the Korea Gas Corporation and the direct seller, as products identical to the sale in the charging station. Considering these circumstances, the said sales

C) Whether the calculation of the base rate and the mitigation rate is unlawful

In light of the fact that the collaborative act in this case is obviously a price collaborative act and it is difficult to find the effect of efficiency increase, and that two importing companies and four oil refining companies occupy 100% of the LPG sales market, and that the ripple effect of the act of violation extends to the nation, and that the main purpose of the act is an item essential for ordinary people's lives for cooking, heating, or automobile fuel, the act of violation falls under "any significant violation". However, in consideration of the fact that considerable part of the violation in the Act overlaps with the period applied before the amendment, the standard imposition rate was set at the lowest 7%, and the imposition rate was reduced by 45% which is less than 4% below the fixed amount of the Plaintiff's penalty surcharge at the stage of imposition, taking into account the Plaintiff's ability to bear the penalty surcharge, the purpose of imposing the penalty surcharge, etc., and then 50% was reduced by recognizing

In full view of the following: (a) the process of calculating penalty surcharges and the instant collaborative act led by two import companies, including the Plaintiff; (b) the amount of unjust enrichment is smaller than the revenue company; (c) the actual barriers to entry into the LPG import at the voluntary mitigation stage have increased the dependence on the importer in the LPG sales market; and (d) the investigation partner cannot reduce the amount for reasons of investigation cooperation at the stage of voluntary adjustment penalty surcharges (Article 21(1) of the Public Notice of Reduction and Exemption), it is difficult to deem that the calculation of the imposition rate and the mitigation rate at the time of calculating the penalty surcharges for the Defendant’s basic penalty surcharges are contrary to the principle of proportionality; or that the calculation of the mitigation rate at the time of calculating the imposition of penalty surcharges is contrary to the principle of equity in relation to the fixed

D) Whether the benefits accrued from the collaborative act of this case were considered

(i)The attitude of the Fair Trade Act Ordinance;

Article 55-3(1)3 of the Fair Trade Act provides that penalty surcharges shall be imposed (Article 55-3(3)), the criteria for imposition of penalty surcharges shall be prescribed by Presidential Decree (Article 55-3(3)), and attached Table 2 of the Enforcement Decree of the Fair Trade Act provides that the scale of profits acquired by a business operator in the stage of compulsory adjustment penalty surcharges shall be considered as an increase factor in penalty surcharges (Article 2(b)), and there is room for reduction in penalty surcharges by taking such consideration into account.

The Enforcement Decree of the Fair Trade Act is legitimate within the scope of delegation, taking into account the following: (a) the Act does not recognize a reduction of the amount of benefits derived from a violation of the Fair Trade Act in the imposition of a penalty surcharge on the basis of the relevant sales and imposition rate, without considering the rate of benefits by industry; and (b) the degree of benefits gained from the violation of the Fair Trade Act may not be partially reflected in the imposition of a penalty surcharge: (c) however, among the benefits obtained from the violation in question, the amount of benefits gained from the violation in question can be verified by accounting data; (d) but not so, for example, the loss of the market due to the extinguishment of competition due to the violation in question may ultimately be included in the profits ultimately; (e) the penalty surcharge under the Fair Trade Act has the characteristics of sanction other than the restitution of unjust enrichment; and (e) there may be sufficient room to reflect

B. Whether the plaintiff's improper interests are considered

According to Gap evidence No. 43, economic experts can find the fact that the plaintiff's profit derived from the collaborative act of this case is about 28.8 billion won or about 2.8 billion won.

However, the economic analysis is merely a result of confirmation under a limited and neutral premise in its nature under its own value-oriented and very limited assumption, and it is merely an auxiliary material to determine the existence of a specific fact, and cannot replace a normative judgment by the free evaluation of judges.

The purpose of the economic analysis submitted by the Plaintiff in this case is to determine whether the profit derived from the collaborative act in this case is against the principle of proportionality because it is not considered as the calculation of penalty surcharge. If the purport of the entire argument is added to the statement of evidence Nos. 12, 13, and 15, another economic expert has a result of the analysis that unjust enrichment in the case of E1, an importer participating in the collaborative act in this case, together with the Plaintiff, is estimated from 108 billion won to 187.3 billion won, and it is very difficult to compute unjust enrichment based on the competitive price as a market with little experience in competition until the termination of the collaborative act in this case, and it is very difficult to find a comparative market. However, according to the fact that the Plaintiff voluntarily performed the collaborative act in 209, it is difficult to view that the sales and sales targets exceeded the goal of the collaborative act in this case, and the profit also has been assessed as 9.5 billion won adjacent to the target amount of the penalty surcharge in this case, it has been remarkably difficult to recognize the Plaintiff's profit in the business through the business.

Considering the above points and the circumstances leading up to the imposition of the penalty surcharge by the Defendant, considering the Plaintiff’s ability to bear the penalty surcharge, the Defendant considered the Plaintiff’s interest in calculating the penalty surcharge of this case, and thus, it is difficult to deem that the instant order to pay the penalty surcharge violates the principle of proportionality in light of the consideration of the interest.

D. Sub-committee

All of the instant dispositions and the instant rejection dispositions are legitimate, and the first Plaintiff’s assertion is without merit on different premise.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment Form]

Judges Cho Jae-ho (Presiding Judge)