2016Du4305 Corrective Order and Revocation of Order for Payment of Penalties

A Stock Company

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Song-yeong, Park Jong-sung, Lee Jong-hoon, Lee Jong-hoon

Fair Trade Commission

Seoul High Court Decision 2014Nu48919 Decided June 2, 2016

November 14, 2019

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

Article 19(1) of the Monopoly Regulation and Fair Trade Act prohibits "unfair collaborative act" includes not only explicit agreement but also implied agreement (see, e.g., Supreme Court Decision 2001Du1239, Feb. 28, 2003). However, since the essence of this agreement is to communicate with two or more enterprisers, it cannot be recognized that there exists an appearance that is consistent with the "unfair collaborative act" listed in each subparagraph of the above provision, and there is no proof of circumstances to recognize the reciprocity of communication between enterprisers, and the burden of proof on such agreement is against the Defendant ordering corrective measures, etc. on the ground of such agreement (see, e.g., Supreme Court Decision 201Du17421, Nov. 28, 2013).

The lower court determined that the Defendant’s disposition based on the premise that the instant construction section was unlawful on the following grounds: (a) comprehensively taking into account the following circumstances: (b) the instant construction project is a large-scale construction project in the alternative bid method and the bid background and character of the instant construction project, such as where one construction section bid is recommended in accordance with the policy decision of the ordering authority; (c) the Plaintiff’s decision to participate in the tender for the 4 construction sections among the entire eight construction sections; and (d) the Plaintiff’s decision to participate in the tender for the other construction sections, other than the Plaintiff and FF corporation; and (e) the Plaintiff’s decision to maintain the 4 construction sections bid policy despite the formation of the instant case, and did not adjust the construction section with the FF corporation and the bid section that selected the same construction section as the desired construction section; and (e) it was difficult to find the need to agree on the division of construction sections with other construction companies upon the risk of failure caused by the competition with the F corporation.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles regarding the agreement of unfair collaborative acts and the objects of agreement on the division of sections, or by exceeding

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

Justices Kim Jong-hwan

Justices Park Sang-ok

Justices Ansan-chul et al.

Justices Noh Jeong-hee