[1] Whether a "unfair collaborative act" under Article 19 (1) of the Monopoly Regulation and Fair Trade Act requires a practical act according to an agreement to be established (negative)

[2] In a case where an agreement under Article 19(1) of the Monopoly Regulation and Fair Trade Act is unfair declaration of intention, whether an unfair collaborative act is established (affirmative)

[3] In a case where an agreement under Article 19(1) of the Monopoly Regulation and Fair Trade Act is reached only among certain enterprisers, whether an unfair collaborative act is established (affirmative)

[1] An unfair collaborative act under Article 19(1) of the Monopoly Regulation and Fair Trade Act is established when an enterpriser agrees with another enterpriser to engage in an act falling under any of the subparagraphs of the same paragraph which practically limits competition in a particular business area, and thus, it does not require that an act under an agreement was practically conducted

[2] Even if one enterpriser has reached an agreement with the intention not to reach an agreement from the beginning, it is the same that the other enterpriser becomes an act of restricting competition by using the other enterpriser's trust in complying with the agreement and the other enterpriser's trust and act as above. Thus, it does not interfere with the establishment of an unfair collaborative act under Article 19 (1) of the Monopoly Regulation and Fair Trade Act.

[3] The agreement under Article 19(1) of the Monopoly Regulation and Fair Trade Act is not necessary to be made among all enterprisers participating in any trade sector or specific bidding, and even if it was made only between certain enterprisers, it constitutes an unfair collaborative act that is assessed as an act that restricts competition.

[1] Articles 19(1), 26(1), and 66(1) of the Monopoly Regulation and Fair Trade Act / [2] Article 19(1) of the Monopoly Regulation and Fair Trade Act, Article 107 of the Civil Act / [3] Article 19(1) of the Monopoly Regulation and Fair Trade Act

[1] Supreme Court Decision 94Nu13794 delivered on May 12, 1995 (Gong1995Sang, 2130), Supreme Court Decision 96Nu150 delivered on May 16, 1997 (Gong1997Sang, 1759)

International General Co., Ltd. (Attorney Lee Dong-soo, Counsel for defendant-appellee)

Fair Trade Commission (Law Firm Manuri, Attorneys Yoon Ho-il et al., Counsel for the defendant-appellant)

Seoul High Court Decision 97Gu53412 delivered on August 18, 1998

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

We examine the grounds of appeal.

1. An unfair collaborative act under Article 19(1) of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Act") is established when an enterpriser agrees with another enterpriser to jointly engage in an act falling under any of the subparagraphs of the same paragraph that practically limits competition in a particular business area. Thus, an act according to an agreement is not required to have been practically performed, and even if a single enterpriser has agreed by an expression of intent not to follow the initial agreement from the initial point of view, it is the same as the other enterpriser's act of restricting competition by using the belief that the other enterpriser is reliance upon the agreement and the other enterpriser is to act reliance and act as above. Thus, the agreement does not interfere with the establishment of an unfair collaborative act. The above agreement does not need to be made between any trade or all participating enterprisers, and even if it is made only between certain enterprisers, it shall be deemed that an unfair collaborative act is established as long as it is assessed as an act of restricting competition.

2. According to the facts found by the court below, the plaintiff agreed with the non-party 1 and the non-party 2 of the director of the plaintiff company to accept the price of KRW 56.5 billion in the construction of this case, and thus, the plaintiff shall be deemed to have reached an agreement on price-fixing substantially restricting competition with the construction of the fleet. Accordingly, the plaintiff's unfair collaborative act under Article 19 (1) 1 of the Act shall be deemed to have been established. Whether the plaintiff agreed to perform the above agreement from the beginning or not, and whether the plaintiff has fulfilled the above agreement shall not affect its establishment. Thus, even if the plaintiff was willing to receive the successful bid by responding to the amount of KRW 53 billion in the internal trial, and thereafter failed to comply with the agreement, such circumstance shall not interfere with the establishment of the unfair collaborative act. The decision of the court below to the same purport is justified.

In addition, since an unfair collaborative act was established by only the above agreement between the plaintiff and the elective construction, it is not affected by the conclusion of whether the plaintiff is deemed to have reached an agreement with other companies than the elective construction.

In addition, it cannot be deemed that the Plaintiff’s above act was merely a compromise and compromise between bidders within the scope recognized by the general transaction norms in order to prevent a bruptive competition in an appropriate line taking into account corporate profits.

Therefore, there is no reason to argue that the court below erred by misapprehending the legal principles of Article 19 of the Monopoly Regulation and Fair Trade Act or by interpreting the parties' declaration.

3. Therefore, the appeal is dismissed and all 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 Lee Jae-soo (Presiding Justice)