[1] Requirements for presumption of agreement on unfair collaborative acts under Article 19(5) of the former Monopoly Regulation and Fair Trade Act

[2] The case holding that each increase in the rate of cash service, installment commission, and overdue interest rate of four card companies corresponds to their appearance, and that such act constitutes an act practically restricting competition by reducing competition through price in the domestic credit card business sector

[3] 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

[4] In a case where the Fair Trade Commission determines a penalty surcharge for an unfair collaborative act, including a period of time other than a violation period, calculates the sales and takes it as the sales standard for imposing the penalty surcharge, whether the order to pay the penalty surcharge exceeds and abused the discretionary authority (affirmative)

[5] The meaning of the starting date of an act of violation under the presumed agreement of unfair collaborative acts pursuant to Article 19(5) of the former Monopoly Regulation and Fair Trade Act and the criteria for its determination

[1] Article 19 (1) and (5) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199) / [2] Article 19 (1) and (5) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 1999) / [3] Article 19 (1) and (5) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 1999) / [4] Articles 19 and 55-3 (1) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199) / [5] Article 19 (1) and (5) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199)

[1] [1] [3/4] [5] Supreme Court Decision 2002Du4643 Decided May 30, 2003, Supreme Court Decision 2004Du7184 Decided September 22, 2006 (Gong2006Ha, 1823) Supreme Court Decision 2004Du7160 Decided October 27, 2006 / [1/3] Supreme Court Decision 2001Du1239 Decided February 28, 2003 (Gong203Ha, 928), Supreme Court Decision 2002Du4648 Decided May 27, 2003 (Gong203Ha, 1458), Supreme Court Decision 201Du52504 Decided December 12, 2003, Supreme Court Decision 205205Du52053645 Decided December 25, 2002)

El Branch Card Co., Ltd. (Attorneys Han Han-soo et al., Counsel for the defendant-appellant)

Fair Trade Commission (Law Firm Han, Attorneys Jeon Soo-soo et al., Counsel for defendant-appellant)

Seoul High Court Decision 2002Nu17073 delivered on May 27, 2004

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

We examine the grounds of appeal.

1. Judgment on the Plaintiff’s appeal

A. As to grounds of appeal Nos. 1 and 2

(1) If the Fair Trade Commission proves two indirect facts of “an act falling under any of the subparagraphs of Article 19(1) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813, Feb. 5, 1999; hereinafter “the Act”) and the fact that it “an act practically restricting competition in a particular business area” is “an act practically restricting competition in a particular business area” (hereinafter “competitive act”), it is presumed that the enterpriser has agreed to engage in such collaborative act (see, e.g., Supreme Court Decision 2002Du4433, May 30, 2003).

(2) (A) Whether an act corresponds to the external shape of the act

In full view of the adopted evidence, the lower court determined as follows: (a) the Plaintiff and the National Card Co., Ltd. (hereinafter “National Card”), Samsung Card Co., Ltd. (hereinafter “Masung Card”), and foreign exchange credit card Co., Ltd. (hereinafter “foreign exchange card”; (b) determined that the above four companies including the Plaintiff raised the weighted average rate calculated by converting the cash service commission rate from February 1, 1998 to March 2, 1998 into the annual average rate of 1.01% between 28.9% and 30.0%; (c) the installment commission rate was the same at the same rate as from January 5, 1998 to February 1, 198; and (d) determined as follows: (a) the rate of interest rate for the cash service commission from January 15, 1998 to February 34, 198; and (d) the difference between the above rate of interest rate of each of the card increase by 4% or 4% after each of the above changes in the aforesaid rate of interest rate; (e.

In light of the records and the purport of the relevant Acts and subordinate statutes, the above recognition and determination by the court below is just and acceptable, and there is no error of law by mistake of facts, omission of judgment, or misapprehension of legal principles as to the consistency with the external form of

(B) As to the practical restriction on competition

According to the records, the market share in the year 198 of the card 4 company at issue of the collaborative act of this case is 13.1%, Samsung Card's 1.4%, the national card's 20.1%, the 14.3%, and the total market share in the card 4 company's 14.3%, which amount to 58.9%, and the credit card business's 4 company's 14 company's 58.9%, and the credit card company's 4 company's 4 company's 1998 company's 198 company's 199 company's 199 company's 199 company

The recognition and judgment of the court below to the same purport is just, and there is no violation of the rules of evidence, misunderstanding of facts, misunderstanding of legal principles, incomplete hearing, or omission of judgment.

B. Ground of appeal No. 3

According to Article 19(5) of the Act, in determining circumstances where enterprisers who are presumed to have reached an agreement on unfair collaborative acts may destroy the presumption of unfair collaborative acts, it shall be reasonably determined 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 product in question, the characteristic and mode of the product, the distribution structure, the structure of pricing, the overall internal and external impacts on the market price, the position of each individual company in the same field of trade, the impact of the price changes on the individual company's operating income, market share, etc., 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 experience of price reduction and legal violation, and the background of economic and policy at the time (see Supreme Court Decision 2001Du552, Dec. 12, 2003).

The lower court rejected the Plaintiff’s assertion that, in light of the circumstances indicated in its holding, it is difficult to view the instant rate increase by 4 card companies independently in accordance with their respective business judgment without any actual agreement or mutual understanding, and even if the instant rate increase at the time of the increase, the instability in the fund market was accelerated due to the occurrence of the IMF remedy financial situation, and the credit card policy of 4 card companies except the instant rate increase, such circumstance alone alone, is insufficient to reverse the presumption of agreement on collaborative acts, and thus, the presumption of agreement on collaborative acts becomes extinct.

Such recognition and determination by the court below are justified in light of the records, and there is no error of law in the misconception of facts or incomplete hearing as to the extinguishment of presumption of agreement.

C. Regarding ground of appeal No. 4

The court below rejected the plaintiff's disposition of this case, on March 28, 2001, on the ground that the act of maintaining the rate of cash service fee, etc. without reducing the cash service fee, etc. between around the end of 2000 and around March 2001, before the disposition of this case was taken, since the plaintiff et al. increased the rate of cash service fee, etc. for the first time of 1998 and around the beginning of 1999, did not constitute an abuse of market dominant position, and thus ordered the plaintiff et al. to take corrective measures and pay a penalty surcharge. The court below rejected the plaintiff's disposition of this case as of March 28, 2001, unlike the act of taking the plaintiff et al. as the object of unfair collaborative acts from the beginning of 1998 to the beginning of 1999 when the economic situation changed, since the act of maintaining the above rate from the end of 200 to the beginning of 201 to the beginning of 2001.

In light of the records, the above recognition and judgment of the court below are just and acceptable, and there is no error of law by mistake of facts or misunderstanding of legal principles as to the prohibition against double Jeopardy.

2. Judgment on the defendant's appeal

Article 55-3 (1) of the Act provides that the Fair Trade Commission shall take into account the content and degree of the violation, the period and frequency of the violation, and the size of profits acquired from the violation in the imposition of a penalty surcharge. In the event that the Fair Trade Commission calculates sales by taking into account the period of the violation and the size of profits during the violation, which includes a period of time, and takes it into account as a sales standard, it shall be deemed that there is an error in the fact-finding that serves as the basis for exercising the discretionary authority to impose a penalty surcharge. Thus, the order to pay a penalty surcharge is illegal as it deviates from and abused discretion (see, e.g., Supreme Court Decisions 200Du6121, May 28, 2002; 2002Du4433, May 30, 2003). Meanwhile, according to Article 19 (5) of the Act, it is presumed that an agreement on the unfair collaborative act was reached only when it restricts competition. Thus, the starting date falling under the period of the violation refers to an indirect act at issue.

The court below held on February 10, 1998, where the plaintiff increased the commission rate of cash service, that only Samsung Card (24.5% in total), the plaintiff only raised the discount rate (13.1%) on January 5, 1998, and the Samsung Card (24.5% in total) on February 11, 1998, increased the overdue interest rate, and that the above price discount constitutes "the act practically suppressing competition", and determined that its market share, which is the premise of determining whether the above price discount act constitutes "the act practically restricting competition", can not be deemed as the time of the violation, and ultimately, in calculating the rate increase of the surcharge of this case, the court below determined that the defendant's calculation of the rate of the surcharge of this case should be based on the presumption that the above price discount act of this case constitutes "the act of actually restricting competition" or "the act of calculating the rate of surcharge of this case" as the date of the increase in the rate of surcharge of this case, and it should be based on each other's calculation of the rate of the penalty surcharge of this case.

In light of the records and the above legal principles, the above recognition and determination by the court below are just, and there is no error in the misapprehension of legal principles as to competition limitation and calculation of penalty surcharge.

3. Conclusion

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 Yang Sung-tae (Presiding Justice)