(영문) 서울고등법원 2014.12.10. 선고 2014누2081 판결

The order to pay penalty surcharges under Paragraph 2 (hereinafter referred to as the "order to pay penalty surcharges of this case") among the dispositions in the attached Form that the defendant made to the plaintiff to the plenary session B on January 8, 2014 shall be revoked.

Reasons

1. Details of the disposition;

A. The plaintiff is a business operator under Article 2 subparagraph 1 of the Monopoly Regulation and Fair Trade Act, who runs the business of manufacturing and installing underwater pumps with the trade name of "C" and is a business operator under Article 2 subparagraph 1 of the Fair Trade Act (hereinafter "Fair Trade Act").

B. On January 8, 2014, the Defendant rendered the following dispositions to the Plaintiff on the ground that the Plaintiff violated Article 19(1)1, 3, and 4 of the Fair Trade Act by engaging in any unfair collaborative act (hereinafter “instant collaborative act”) as set forth below.

The 20 business entities including the Plaintiff, etc. participated in the bidding, such as the purchase of underwater pumps ordered by the Public Procurement Service on February 22, 2005 through May 24, 2009, each bid price was determined in advance, and the bid volume was mutually allocated by designating the successful bidder (However, from December 26, 2008, the Plaintiff participated in the collaborative act in this case).

[Reasons for Recognition] There is no dispute, entry of Gap evidence 3

2. Determination on the legitimacy of the instant penalty surcharge payment order

A. As to the assertion such as deviation from and abuse of discretionary power in calculating penalty surcharges

(1) Summary of the Plaintiff’s assertion

In the instant penalty surcharge payment order, there is an error of calculating the relevant sales revenue unfairly or not taking into account the grounds for mitigation as follows.

(A) The Plaintiff did not have obtained any economic benefits through the instant collaborative act. Therefore, the instant penalty surcharge payment order goes against the purpose of imposing a penalty surcharge, seeking to deprive the illegal economic benefits obtained by the instant collaborative act of violating the Fair Trade Act.

(B) The Defendant deemed the relevant sales, which serves as the basis for calculating the instant penalty surcharge, as the contract price by bidding. However, the Plaintiff is merely a simple participant and there was no fact that the Plaintiff entered into a contract with the bid awarded, and thus, the relevant sales should not be calculated on the same basis as the business operator who entered into the contract

(C) The Plaintiff did not lead the instant collaborative act, and was inevitably involved in the instant collaborative act as a small business entity. Nevertheless, the Defendant did not consider these circumstances in calculating the instant penalty surcharge.

(2) recognised facts

(A) At the early stage, the enterprisers participating in the instant collaborative act divided the group according to the supply performance of the underwater pumps owned by each enterpriser, and implemented the agreement by 'net order system' or 'joint order system' in which the companies having the joint order issued by the companies having the order of successful bid are jointly awarded a successful bid and jointly awarded a successful bid and jointly awarded a contract to distribute mutual benefits. However, upon the occurrence of a problem of equity among the enterprisers, since May 2007, the enterprisers determined the successful bidder in relation to the specific bid items, and implemented the agreement by 'the distribution of profit' in which all the enterprisers participating in the agreement, including the difference between the successful bidder and the manufacturing cost, are allocated to all the enterprisers who participated in the agreement.

(B) The Plaintiff participated in the bidding conducted by IMA Co., Ltd. (in the case of a corporation for convenience, the portion of "stock company," among its corporate names, shall not be stated separately) and the Public Procurement Service (in the case of a corporation for convenience, the Plaintiff determined the successful bidder in advance, and agreed to distribute the profit if the successful bidder was actually awarded the successful bidder (i.e., the agreement on the method of allocating the profit) ① the bidding conducted on December 26, 2008, and ② the 'the bidding conducted on January 5, 2009'.

(C) As a result of each bid listed in the above Paragraph (b) (hereinafter referred to as the "tender in this case") each of the two biddings listed in this Section (hereinafter referred to as the "tender in this case") entered into a contract with the demanding administrative agency upon acceptance of a successful bid by IMM as agreed among the enterprisers participating in the collaborative act. However, as a result of the investigation in this case, the enterprisers who participated in the bidding in this case including the Plaintiff did not have received the originally agreed interest

(D) The Defendant calculated the contract price at issue only for the successful bidder in the case where the agreement has been implemented by 'the exclusive-order system'. However, in the case where the agreement has been implemented by 'the joint-order system' and 'the profit allocation system', the Defendant calculated the contract price at issue for the successful bidder and the business entity subject to the profit distribution as the relevant sales amount regardless of whether to allocate the profit.

(E) On the other hand, unlike the opinion of the examiner in charge, the defendant decided to impose a penalty on the plaintiff, on the ground that ① the plaintiff was unable to be distributed profits through the collaborative act in this case, but this was merely the fact that the investigation in this case was conducted, ② the business operator participating in the agreement is subject to the penalty surcharge in principle, ③ the business operator participating in the bidding in order to realize the administrative purpose called the suppression of collusion, need to impose a penalty surcharge on the plaintiff.

(F) Accordingly, the Defendant calculated the sum of the contract price of the instant bid of the Plaintiff as the relevant sales amount of KRW 1,059,090,908, which was the sum of the contract price of the instant bid of the Plaintiff, and determined the amount of the penalty surcharge to be paid by the Plaintiff as KRW 35 million following the following process:

(a) Base rate: 7%;

- In light of the fact that the collaborative act in this case constitutes a very serious violation, but most of the enterprisers participating in the collaborative act in this case are small and medium enterprises or individuals, 7% of the imposition standard rate of 7-10% under internal guidelines shall be applied.

(ii) the first coordination by an element of an act: None of the relevant matters;

3) Second adjustment by an element of an actor: 20 per cent mitigation

- 20% or 30% differential reduction for each business, taking into account the degree of cooperation in the investigation;

4) Determination of penalty surcharges: 40% of the additional mitigation;

-Graded reduction by 20 to 40% for each service, taking into account the total bid price, estimated shares in each service case, etc.;

[Reasons for Recognition] Evidence No. 3 and Evidence No. 2

(3) Determination

(A) Since the Defendant has discretion to determine whether to impose penalty surcharges on a violation of the Fair Trade Act and to determine the amount of penalty surcharges within a specific scope prescribed by the Fair Trade Act when imposing penalty surcharges, the Defendant’s order to pay penalty surcharges is a discretionary act. However, if the Defendant erred by misapprehending the fact that served as the basis for the imposition of penalty surcharges or violates the principle of proportionality and equality while exercising such discretion, it constitutes a deviation or abuse of discretionary power (see, e.g., Supreme Court Decision 2012Du1773, Nov. 28, 2013).

(B) In full view of the following circumstances revealed by the facts and evidence admitted earlier, the instant penalty surcharge order cannot be deemed as having any defect as alleged by the Plaintiff, and no other circumstance exists to deem that the Defendant abused or abused discretion. Accordingly, the Plaintiff’s assertion on this part is without merit.

1) The instant collaborative act constitutes a very serious violation that clearly indicates the effect of restricting competition and declares the purpose of bidding itself. Moreover, in order to realize the administrative purpose of suppressing unfair collaborative acts, the penalty surcharge is imposed by adding unjust enrichment restitution factors to the basic nature of administrative sanctions that impose sanctions against such act (see, e.g., Supreme Court Decision 2002Du7456, Oct. 28, 2004). In addition, the Defendant’s decision to impose penalty surcharges on the Plaintiff does not constitute an unfair measure that goes against the purpose of imposing penalty surcharges.

2) In the case of the Plaintiff, it is recognized that only participated in the instant bidding, but did not receive a successful bid, and that the Plaintiff did not receive any profit distribution through the instant collaborative act.

However, in the case of “the method of profit distribution”, in substance, the enterpriser who participated in the bidding jointly with the successful bidder has the same effect as the offer of the bid in question, and thus, the contract price can be deemed as appropriately reflecting the scale of the bidding that became the object of the above anti-act. In addition, the Plaintiff is merely merely a failure to distribute the agreed interests as a result of the investigation in this case, and does not agree to participate in the collaborative act in this case without any economic cost from the beginning. Considering these circumstances, it is not unreasonable for the Defendant to determine that the Defendant’s calculation of the Plaintiff’s related sales amount is based on the “contract amount.”

3) In light of the number of bidders participating in the Plaintiff’s bidding process, contents of the agreement on allocating profits among enterprisers, etc., it is difficult to recognize that the Plaintiff merely participated in the instant collaborative act in a passive position, or carried out only a subordinate role.

4) In light of the circumstances in which the Plaintiff did not obtain economic benefits through the instant collaborative act, the Defendant applied the highest reduction rate of 40% among the relevant enterprisers at the final stage of adjusting the amount of penalty surcharges. Furthermore, the Defendant appears to have fully taken account of the Plaintiff’s individual circumstances, including where only the Plaintiff did not file a criminal charge, among the 20 enterprisers who participated in the instant collaborative act.

B. As to the assertion of violation of the principle of trust protection

(1) Summary of the Plaintiff’s assertion

The examination report prepared by the Defendant’s examiner to which the Defendant belongs states that the Plaintiff is excluded from the imposition of a penalty surcharge, because there is no part of the Plaintiff’s economic benefits. The Defendant, through the above examination report, made a decision to impose a penalty surcharge on the Plaintiff at the final decision stage despite the Plaintiff’s trust not to impose a penalty surcharge on the Plaintiff. Therefore, the instant order

(2) Determination

According to the evidence No. 7, it is recognized that the examination report prepared by the examiner employed by the defendant around July 2013 and submitted by the defendant to the defendant contains the same contents as the plaintiff's assertion.

However, the above review report is merely a document prepared in the course of the decision-making of the defendant's internal intent, and it cannot be deemed that the defendant expressed a public opinion that the defendant would not impose a penalty surcharge on the plaintiff, and it does not constitute a collaborative act in this case with trust by the plaintiff. Therefore, it cannot be deemed that the penalty surcharge order in this case violates the principle of trust protection. The plaintiff's assertion on

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.