[1] In case where enterprisers agreed on price determination, etc. over several occasions before and after the commencement of a specific collusion executor's rehabilitation procedure, whether the collusion executor, who commenced the rehabilitation procedure, becomes a rehabilitation claim for the claim for penalty surcharge against the agreement that had already been reached before the commencement of rehabilitation procedure

[2] Whether a disposition is legitimate where an administrative agency imposes a penalty surcharge after the rehabilitation plan approval order without reporting the right to claim a penalty surcharge, which is a rehabilitation claim (negative)

[1] Where an administrative violation, which is subject to the imposition of a penalty surcharge, is established before the commencement of rehabilitation procedures for the debtor, the claim for the penalty surcharge is a rehabilitation claim even after the disposition for imposition is commenced.

Unfair collaborative acts under Article 19(1)1 of the Monopoly Regulation and Fair Trade Act are established only when there is an agreement between the parties to a price determination, etc. Furthermore, rehabilitation claims should be classified according to objective and definite criteria, from among public-interest claims, considering the characteristics of rehabilitation procedures regulating legal relations among many interested parties.

Therefore, if enterprisers agreed on price determination, etc. over several occasions before and after the commencement of a specific collusion, even if there is no difficulty in assessing the multiple agreements as a whole with respect to the collusion participants other than the one who commenced the rehabilitation procedure, the right to claim penalty surcharges for the agreement that the collusion has commenced prior to the commencement of the rehabilitation procedure is a rehabilitation claim.

[2] Where the rehabilitation plan approval order becomes final and conclusive without reporting the right to claim a penalty surcharge, which is a rehabilitation claim, as a rehabilitation claim, an administrative agency may not exercise its right to impose a penalty surcharge any longer after the rehabilitation plan approval order is extinguished. Therefore, the administrative agency’s imposition of a penalty surcharge after the rehabilitation plan approval order is rendered illegal as it is unlawful.

[1] Article 118 subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act, Article 19 (1) 1 of the Monopoly Regulation and Fair Trade Act / [2] Articles 148 and 251 of the Debtor Rehabilitation and Bankruptcy Act, Article 19 (1) of the Monopoly Regulation and Fair Trade Act

[1] Supreme Court Decision 2015Du54193 Decided January 28, 2016 / [2] Supreme Court Decision 2013Du5159 Decided June 27, 2013 (Gong2013Ha, 1373)

[Defendant-Appellee-Appellant] LLC Co., Ltd. (Law Firm LLC, Attorneys Park Jae-sik et al., Counsel for defendant-appellee-appellant-appellee-appellant)

Fair Trade Commission

Seoul High Court Decision 2016Nu47705 decided October 20, 2016

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. A. Where a violation of administrative duties, which is subject to the imposition of a penalty surcharge, is established before the commencement of rehabilitation procedures for a debtor, the relevant claim for penalty surcharge is a rehabilitation claim even if the disposition for imposition is issued after the commencement of rehabilitation procedures (see Supreme Court Decision 2015Du54193, Jan. 28, 2016, etc.).

An unfair collaborative act under Article 19(1)1 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) is established only when the parties have reached an agreement on price determination, etc. Furthermore, rehabilitation claims should be classified according to objective and definite criteria, different from public-interest claims, given the nature of rehabilitation procedures regulating legal relations among many interested persons.

Therefore, if enterprisers agreed on the price determination, etc. over several occasions before and after the commencement of a specific collusion, even if there is no difficulty in assessing the multiple agreements as a whole with respect to the collusion participants other than the one who commenced the rehabilitation procedure, it is reasonable to view that the collusion participants, who commenced the rehabilitation procedure, becomes the rehabilitation claim for the penalty surcharge for the agreement that had already commenced prior to the commencement of the rehabilitation procedure.

B. In addition, where the rehabilitation plan is authorized without reporting the right to claim a penalty surcharge, which is a rehabilitation claim, as a rehabilitation claim, and the rehabilitation claim becomes effective pursuant to the main sentence of Article 251 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”), and the defendant cannot exercise his/her right to impose the penalty surcharge any longer. Therefore, the disposition taken by the defendant against it after the rehabilitation plan approval is completed is unlawful (see Supreme Court Decision 2013Du5159, Jun. 27, 2013, etc.).

2. The lower court determined that the instant disposition imposing a penalty surcharge on the part before the commencement of rehabilitation proceedings against the Plaintiff among the collaborative acts in this case was unlawful, on the grounds that the Defendant did not legally report it as rehabilitation claims, and thus, the exemption of the above claim for penalty surcharge under the main sentence of Article 251 of the Debtor Rehabilitation Act was effective, on the grounds that the Defendant did not legally report it as rehabilitation claims.

In light of the aforementioned legal principles and records, the lower court’s conclusion that the instant disposition was unlawful is justifiable, although there are somewhat inappropriate parts in its judgment. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on rehabilitation claims or the effect of exemption.

3. 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 Park Jung-hwa (Presiding Justice)