[1] The meaning and standard of determining “act of providing unfair assets, goods, etc.” under Article 36(1) [Attachment Table 1-2] 10(b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act

[2] The meaning of "normal interest rate" for calculating the amount of support, which is the standard for imposing penalty surcharges for unfair financial assistance under Article 36 (1) [Attachment Table 1-2] 10 (a) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act

[1] In light of Article 23(1)7 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 12095, Aug. 13, 2013); Article 36(1) [Attachment 1-2] 10(b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 25173, Feb. 11, 2014); and Article 36(1) [Attachment 1-2] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 25173, Feb. 11, 2014), the term “unfair act of providing assets, commodities, etc.” means an act of assisting a person with special interest or other companies by offering or trading assets, such as real estate, securities, goods, services, intangible property, etc. at a significantly low or high price, or by offering or trading them with excessive economic benefits. Determination of whether to provide economic benefits should be made by comprehensively considering the economic difference between the period of subsidization and the period of subsidization.

In addition, the arm's length price, which serves as the basis for determining whether benefits and consideration are substantially favorable in support activities, such as unfair assets and goods, refers to the transaction price, etc. formed where the economic benefits identical to the economic benefits that have been provided between the support entity and the support entity have been provided by an independent party in a similar situation, such as the time, type, size, period, credit standing, etc. of the economic benefits that have been provided between the support entity and the support entity. The fact that the specific transaction is “an act of providing excessive economic benefits by trading under substantially favorable terms

[2] In full view of each provision of Article 23(1)7 and (2) and Article 24-2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 12095, Aug. 13, 2013); Article 36(1) [Attachment 1-2] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 25173, Feb. 11, 2014); Article 6(1) [Attachment 1-2] 10(a) and 61(1) [Attachment 2] 5 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 25173, Feb. 11, 2014); the “amount” subject to penalty surcharges for unfair financial assistance should be calculated based on the interest rate obtained by subtracting the interest rate actually applied to specific financial transactions between the applicant and the applicant. The normal interest rate in this context refers to the time of financial assistance transaction between the applicant and the applicant and the applicant’s special relationship.

In addition, the average of the overdraft loan interest rates of commercial banks announced by the Bank of Korea as of the end of each month (this shall be calculated by averaging all of the balance of loans implemented under the overdraft loan contracts in commercial banks as of the end of the relevant month; hereinafter “general overdraft interest rates”) is a temporary short-term loan interest rate based on the overdraft loan agreement, which is generally higher than the general over the general loan interest rate, such as the normal overdraft loan interest rate. Thus, barring any special circumstance where the individual overdraft interest rate is deemed not to lower the general average interest rate, the above general interest rate cannot be applied just on the ground that it is difficult to calculate the individual overdraft interest rate, and special circumstances where the individual overdraft interest rate is deemed not lower than the general average interest rate should be attested by the Fair

[1] Article 23(1)7 and (2) of the former Monopoly Regulation and Fair Trade Act (Amended by Act No. 12095, Aug. 13, 2013); Article 36(1) [Attachment Table 1-2] subparag. 10(b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Amended by Presidential Decree No. 25173, Feb. 11, 2014); Article 23(1)7 and (2) and Article 24-2 of the former Monopoly Regulation and Fair Trade Act; Article 36(1) [Attachment Table 1-2] subparag. 10(b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act / [2] Article 23(1)7 and (2) of the former Monopoly Regulation and Fair Trade Act (Amended by Act No. 12095, Aug. 13, 2013; Presidential Decree No. 25173, Feb. 11, 2014]

[1] Supreme Court Decision 2004Du11268 Decided December 7, 2006 (Gong2007Sang, 142) Supreme Court Decision 2009Du15494 Decided October 25, 2012 / [2] Supreme Court Decision 2001Du6197 Decided April 9, 2004 (Gong2004Du7610 Decided January 25, 2007 (Gong2007Sang, 349) Supreme Court Decision 206Du8792 Decided June 26, 2008 (Gong2008Ha, 1076)

[Defendant-Appellee] Crostrub Co., Ltd. and five others (Attorneys Kim Su-soo et al., Counsel for defendant-appellee)

Fair Trade Commission (Law Firm Jipyeong, Attorneys Kim Gi-hwan et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Nu10293 decided January 24, 2013

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to whether a “transaction under substantially favorable conditions” in an act of supporting assets, goods, etc. was established

Article 23(1)7 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 12095, Aug. 13, 2013; hereinafter “former Monopoly Regulation and Fair Trade Act”); Article 36(1) [Attachment 1-2] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 25173, Feb. 11, 2014; hereinafter “former Enforcement Decree of the Fair Trade Act”); and Article 23(1)4 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 25173, Feb. 11, 2014; hereinafter “former Enforcement Decree of the Fair Trade Act”); “an act of providing assets, goods, etc.” means an act of assisting a person with special interest or other company by offering assets, such as real estate, securities, services, intangible property rights, or providing or trading at a remarkably low or high price, which is likely to interfere with fair trade.”

After finding facts as indicated in its reasoning based on evidence duly adopted and investigated, the lower court: (a) determined that Plaintiff 5’s “Plaintiff 5 company” was acting for, and based on the fact that Plaintiff 5 Company Croin Big (hereinafter in the name of the Company, “stock company” is omitted); (b) passenger personnel expenses incurred in moving into, and so on; (c) determined that the Plaintiff 5 Company’s transaction was unlawful on behalf of, the sales agency based on the terms and conditions that it provided various kinds of expendable materials (Maincation andO; hereinafter “MRO”); and (d) it is difficult to view that the Defendant’s sales agency’s sales commission was unreasonable to deem that it was unlawful for the Plaintiff 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company 5 Company’s.

In light of the aforementioned legal principles and records, the judgment below is just and there is no error in the misapprehension of the legal principles as to “trade under substantially favorable conditions” in support of unfair assets, goods, etc. under the Fair Trade Act, or in the misapprehension of facts beyond the bounds of the principle of free evaluation of evidence.

2. As to the calculation of the amount of support in an unfair financial support

In full view of the provisions of Articles 23(1)7 and (2), and 24-2 of the former Fair Trade Act, Article 36(1) [Attachment Table 1-2] 10(a) and 61(1) [Attachment Table 2] 5 of the former Enforcement Decree of the Fair Trade Act, the “amount of subsidies”, which is the standard for imposing penalty surcharges for unfair funding activities, shall be calculated on the basis of the interest rate calculated by subtracting the interest rate actually applied to specific financing transactions between the subsidizing entity and the subsidizing entity from the normal interest rate. Here, the normal interest rate should not be calculated on the basis of the average of 00 interest rate per month for loans under the same or similar circumstances such as the time of financing transactions between the subsidizing entity and the subsidizing entity, type, size, period, credit conditions, etc. (see, e.g., Supreme Court Decision 200Du1678, Apr. 26, 200).

The court below, based on the evidence duly admitted and investigated, found the facts as stated in its reasoning, and determined that, in borrowing 62.1 billion won from our bank, the Plaintiff’s bank provided 60 billion won of its deposit and 1 million won of its shares as security, so that eropool-con may obtain a loan from our bank at 5.50-5.87% of its loan interest rate, e.g., e., e., e., e., a loan interest rate of 50 billion won, without any consideration, even though it was difficult for the Defendant to calculate e.g., an individual normal interest rate in calculating e., calculating e., the amount, or there was no special circumstance to deem that e.g., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., s.

In light of the above legal principles and records, the judgment below is just and there is no error in the misapprehension of legal principles as to the calculation of penalty surcharges for unfair support, or in the misapprehension of legal principles as to experience and logic and free evaluation of evidence.

3. Conclusion

Therefore, all appeals are 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 Min Il-young (Presiding Justice)