[1] The standard for determining circumstances that can destroy presumption of agreement on unfair collaborative acts under Article 19(5) of the former Monopoly Regulation and Fair Trade Act

[2] The criteria for determining the scope of goods or services related to an unfair collaborative act, which is the premise for the calculation of sales amount, in cases where a penalty surcharge is imposed on an unfair collaborative act

[3] The case holding that the Korea Yang Industrial Association was engaged in an unfair collaborative act prohibited under Article 26 (1) 1 of the Monopoly Regulation and Fair Trade Act as an enterprisers' organization to which the Monopoly Regulation and Fair Trade Act applies

[4] The method of calculating the penalty surcharge imposed on the prohibited acts of the enterprisers' organization

[5] The starting date and ending date of the implementation of the collaborative act to determine the period of the violation among the elements of the criteria for imposing penalty surcharges on the unfair collaborative act under Article 19 (5) of the former Monopoly Regulation and Fair Trade Act

[1] Article 19(5) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004) / [2] Article 22 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004), Articles 9 and 61(1) [Attachment Table 2] 6 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 18356 of Apr. 1, 2004) / [3] Article 2 subparag. 1 and 4 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004), Article 2 subparag. 1 and 5 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 18315 of Dec. 31, 2004) / [4] Article 16 subparag. 15 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 4815 of the former Act

[1] Supreme Court Decision 2001Du552 Decided December 12, 2003 (Gong2004Sang, 163), Supreme Court Decision 2004Du7160 Decided October 27, 2006, Supreme Court Decision 2004Du8323 Decided November 23, 2006 (Gong2007Sang, 55) / [2] Supreme Court Decision 2001Du10387 Decided January 10, 2003 (Gong2003Sang, 635) / [5] Supreme Court Decision 2006Du10764 Decided January 31, 2008

Aement Industry Co., Ltd. and two others (Law Firm Barun, Attorneys Jeong Jin-jin et al., Counsel for the plaintiff-appellant)

Fair Trade Commission

Seoul High Court Decision 2004Nu4903 delivered on May 24, 2006

All appeals are dismissed. The costs of appeal are assessed against each party.

We examine the grounds of appeal.

1. As to the grounds of appeal on the legal provisions applicable to the plaintiffs' cement supply restriction act

The lower court determined that the acts of Plaintiff Cement Industries Co., Ltd. (hereinafter “Plaintiffs Association”) and 7 companies (hereinafter “Plaintiffs Association”) which are composed of the members of the Plaintiff Korea Cement Industry Association (hereinafter “Plaintiffs Association”) such as Cement Cement Co., Ltd. and Troding Industries Co., Ltd., Ltd. (hereinafter “instant 7 companies”) are acts of restricting the free market share of cement cement Co., Ltd., Ltd. (hereinafter “Crost cement Co., Ltd., Ltd., Hyundai cement Co., Ltd., Ltd., Ltd., and hereinafter “Crost Industries Co., Ltd.”) to be acts of restricting the free market share of the said 10% of cement Co., Ltd., Ltd. (hereinafter “Crost Industries Co., Ltd., Ltd., Ltd., and the instant 10% of the instant cement cement Co., Ltd., Ltd., Ltd. and the instant 10th Co., Ltd., Ltd., Ltd. (hereinafter “Crost Industries Co., Ltd., Ltd., Ltd., Ltd., Ltd., Ltd., Ltd.) to be used for cement.)

In light of the relevant statutes and the records, the above judgment of the court below is just, and there is no error of law by misunderstanding legal principles related to the applicable law to the instant cement supply restriction act, and the defendant's act of restricting the amount of cement supply to the instant company's main industry and oil ready-mixed constitutes an unfair collaborative act that interferes with and restricts the Asian industry and the instant company's slurging business, and the application of Article 19 (5) of the Act is not limited to Article 23 of the Act, and the argument in the grounds of appeal on the premise that only Article 23 of the Act shall apply is not reasonable.

2. As to the grounds of appeal by Plaintiffs ASEAN and Both parties

A. Whether the presumption of agreement has been destroyed

According to Article 19(5) of the Act, in determining circumstances where enterprisers who are presumed to have agreed to engage in unfair collaborative acts may destroy presumption of unfair collaborative acts, the determination shall be made reasonably 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 goods in question, the characteristic and mode of the goods, the distribution structure, all and the internal and external impacts on the market price, the status of each individual company's occupation in the same field of trade, demand or price changes on the business profits, market share, etc. of the individual company, the legitimacy of the business judgment in light of the individual business conditions of the enterpriser, the actual state of direct exchange of opinions, such as meeting between the enterprisers, etc., the degree of probability that the agreement may be reached even without consultation, the history of violation of the Act, and the background of the economic policy at the time (see, e.g., Supreme Court Decisions 2001Du552, Dec. 12, 2003; 2004Du7160, Oct. 27, 2006).

The court below rejected the plaintiffs' assertion that, in light of the fact that the companies of this case, including the plaintiffs Ahia and Balchis, had a more rapid restriction on the supply amount of the Ahian industry and U.S.M.M., caused the above companies to waive their cement supply and demand business without any agreement, and that the companies of this case, including the plaintiff Ahia and Balchis, gave up their manufacture business of salves without any agreement, and that the above companies before and after that time, they did not agree with the company of this case and the association of this case, and that U.S. are not particularly bad at the time of the restriction on supply, there is a lack of presumption that the above plaintiffs' agreement has been destroyed due to the following reasons: (a) the evidence submitted by Balchis and Balchis can not be seen as having particularly bad credit conditions around the time of the restriction on supply; and (b) the act of interference with business activities, including the restriction on supply of Dalchis and U.S.M., even if conducted independently in accordance with their business judgment without any agreement.

According to the above legal principles and records, the fact-finding and judgment of the court below are justified, and there is no error in the misapprehension of legal principles as to the destruction of legal presumption, the violation of the rules of evidence, or the incomplete hearing.

B. Whether the calculation of a penalty surcharge is lawful

According to Article 22 of the Act and Articles 9 and 61(1) [Attachment 2] 6 of the Enforcement Decree of the Act (amended by Presidential Decree No. 18356, Apr. 1, 2004; hereinafter the same shall apply), where a business entity jointly engages in so-called unfair collaborative act with another business entity, the Fair Trade Commission may impose upon the business entity a penalty surcharge on the basis of the sales of related goods and services during the period of the violation. Provided, That where there is no sales of related goods and services, the Fair Trade Commission may impose a penalty surcharge not exceeding one billion won pursuant to the proviso to Article 22 of the Act. In the event that the sales of related goods and services are recognized, the scope of the goods or services related to the unfair collaborative act, which are the premise of the calculation of the penalty surcharge, shall be determined by taking into account the type and nature of the goods or services included in the agreement between the business entity that has engaged in the unfair collaborative act, the purpose and substitution possibility thereof, and the transaction area, transaction counterpart, transaction stage, etc. (see Supreme Court Decision 2007Du1.).

However, the slurgy powder, which was intended to be produced by the A-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S.

Therefore, the court below is just in holding that the sales amount of the cement sales amount of plaintiff Ahia and Bridges are the sales amount of the related products except for self-consumption and water pipes, and there is no error in the misapprehension of legal principles as to the imposition of penalty surcharges.

3. As to the ground of appeal by the Plaintiff Association

(a) Whether an enterprisers' organization constitutes unfair collaborative acts;

In full view of the provisions of subparagraphs 1 and 4 of Article 2 and Article 26 of the Act, an enterprisers' organization subject to the law refers to a combination or federation organized by two or more manufacturing business, service business, or other business operators for the purpose of increasing their common interests (see Supreme Court en banc Decision 2001Du5347 delivered on February 20, 2003).

According to the records, the plaintiff association is an organization established by the enterprisers engaged in cement manufacturing and sales business, the purpose of which is to promote the promotion of the welfare of its members, contribute to the promotion of the sub-industry and the development of the national economy. In addition to cement industry-related research and research activities, as well as cement industry-related research and development activities, it also regulates cement industry-related administrative agencies, and other related agencies and their members, and all companies engaged in cement manufacturing in Korea join as members. Thus, in full view of the provisions of the articles of association and the organization and activities of the plaintiff association, the plaintiff association is deemed to be an organization that is organized by the enterprisers engaged in cement manufacturing and sales business with the purpose of increasing their common interests, and constitutes a business organization subject to the law.

The court below acknowledged that the Plaintiff Association, as a member organization of the law, requested for the suspension or restriction of the implementation of the slurging industry and the slurging ready-mixeds upon receiving a request for confirmation and inventory solicitation of the slurging industry, etc. from the company of this case, which is a member organization of the Plaintiff Association, and that the slurging industry and the slurging ready-mixeds applied for suspension or restriction of the implementation of the slurging industry, and that the slurging industry in this case was actually restricted by cement supply, and that the slurging industry was actually withdrawn on November 2002, and that the slurging industry was not in conformity with the Plaintiff Association's articles of incorporation's request for suspension or restriction of the slurging industry in accordance with the 19% market share of the slurging industry of the Plaintiff Association, which is the member organization of the Plaintiff Association, and that the slurging industry was not in conformity with the slurging industry's.

In light of the above legal principles and records, the court below is just to determine that the above acts of the plaintiff's association are unfair collaborative acts, and there is no violation of the legal principles as to prohibited acts of the plaintiff's association and the enterprisers' organization, or the rules of evidence.

B. Whether the calculation of penalty surcharges is lawful

The penalty surcharge imposed on prohibited acts by the enterprisers' organization may be determined by the defendant at its discretion in consideration of the purpose, details and degree of the violation to be achieved by the imposition of the penalty surcharge within the scope of the budget amount of the year in which the date on which the violation ends falls, the period and frequency of the violation, the size of profits acquired by the constituent members of the violation, etc. under Article 28 (1) of the Act, and Article 61 (1) [Attachment 2] 9 of the Enforcement Decree of the Act.

According to the reasoning of the judgment below and the records, the defendant joined the plaintiff association as a member of the instant company, which is a cement manufacturing company, the total market share of which is about 90%, and as a result, there is a movement to recognize slot powder as a container mixed fire, and as a result, there is a concern that the existing cement market will be diving due to the spread of slot powder, and thereby, it is highly likely that the existing cement market will interfere with the promotion of cement cement business, such as a cement supply restriction, and the degree of illegality is large to prevent it from interfering with or restricting cement cement business, and thus, 30% of the annual budget amount in 2003 of the plaintiff association was to be imposed as a penalty surcharge, but 2.86 billion won of the plaintiff association's budget amount exceeds 50 million won, which is 50 million won, and thus, the above penalty surcharge may not be excessively excessive.

Therefore, the court below's conclusion that the calculation of the penalty surcharge in this case is not a deviation or abuse of discretionary power, and there is no error in the misapprehension of legal principles as to the calculation of the penalty surcharge.

4. As to the Defendant’s ground of appeal

Article 61(1) [Attachment 2] 6 of the Enforcement Decree of the Act provides that the criteria for imposing penalty surcharges for unfair collaborative acts by type of violation : "period of violation 】 Sales of related goods and services 】 5/100 or less during the same period 】 In relation to the period of violation, public notice as to the detailed criteria for imposing penalty surcharges in relation to the period of violation Ⅱ. The period of violation 5. b. c. Article 19(5) of the Act provides that the starting date of implementation shall be the date of the violation in case of Article 19(5) of the Act and the end shall be the date of completion in case the collaborative act is terminated by not later than the date when the corrective order is notified. According to Article 19(5) of the Act, since the imposition of penalty surcharges for unfair collaborative acts is presumed to have been agreed upon only when the act is restricted, the starting date of the implementation of the collaborative act shall be at the same time two indirect facts that the act is restricted by the external form of the above act are all satisfied.

On May 28, 2003, when the basic material is in the supply restriction period, each written statement containing the contents such as the refusal of the development plan for Incheon North Korea Port and the “to limit the scope of supply of the basic material to self-consumption” and the “to self-consumption.” The court below determined that the completion date of the collaborative act in this case should be deemed to be terminated since the non-company's non-company's non-party share of supply after May 29, 2003, notified the company of this case of this case after the completion of the above renunciation, and the above non-party, the vice-chairperson of the Plaintiff Association, notified the company of this case of this fact, "the result of consultation with the company in this case would cause a smooth settlement of the problem, so the remaining companies except for the Raak cement Co., Ltd., Ltd., would have increased the amount of cement supply on a daily basis from May 29, 2003 to that time, the defendant could have commenced an investigation into the collaborative act.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error of law by misunderstanding legal principles as to the termination period of unfair collaborative acts.

5. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)