[1] Whether an implied agreement is included in the “agreement on an act of unfairly restricting competition” prohibited under Article 19(1) of the Monopoly Regulation and Fair Trade Act (affirmative)

[2] The method to determine whether there was an agreement to determine the price under Article 19(1)1 of the Monopoly Regulation and Fair Trade Act in a case where a competitor exchanged information on price, etc.

[1] Article 19(1) of the Monopoly Regulation and Fair Trade Act / [2] Article 19(1) of the Monopoly Regulation and Fair Trade Act

[1] Supreme Court Decision 2012Du17421 Decided November 28, 2013, Supreme Court Decision 2011Du16049 Decided February 13, 2014 / [2] Supreme Court Decision 2013Du16951 Decided July 24, 2014 (Gong2014Ha, 1739)

Man Truck Bus Korea Co., Ltd. (LLC, Attorneys Yoon Ho-ho et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm KEL, Attorneys Seo-su et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2014Nu41246 decided December 10, 2015

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

The grounds of appeal are examined.

1. “Unfair collaborative act” prohibited under Article 19(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) is “agreement on an act that unfairly restricts competition” and “agreement” includes not only explicit agreement but also implied agreement (see, e.g., Supreme Court Decision 2001Du1239, Feb. 28, 2003). However, since this is the essence of the communication between two or more enterprisers, it cannot be deemed that there exists an external form that is consistent with the “unfair collaborative act” listed in each subparagraph of the above provision, and there should be proof of circumstances to recognize the reciprocity of communication between enterprisers, and the burden of proof on such agreement is against the Defendant ordering corrective measures, etc. on the ground of such agreement (see, e.g., Supreme Court Decision 201Du17421, Nov. 28, 2013).

In addition, in cases where competition enterprisers exchange information on prices, etc., it may be a valuable material to recognize the reciprocity of the communication between the enterprisers. However, even so, even if the information exchange is not so, it cannot be readily concluded that there is an agreement between the enterprisers on the price determination under Article 19(1)1 of the Fair Trade Act merely based on the structure and characteristics of the relevant market, the nature and content of the exchanged information, the subject and timing and method of the exchange of the information, the purpose and intent of the exchange of the information, the degree of consistency or difference between the enterprisers, such as the price and output volume after the exchange of the information, the degree of the decision-making process and content thereof, and whether the purpose of the price consultation can be immediately achieved (see, e.g., Supreme Court Decision 2013Du16951, Jul. 24, 2014).

2. After finding the facts as stated in its holding, the lower court: (1) Although seven companies, including the Plaintiff, etc. exchanged information on the selling price, sales performance, etc. of large cargo cars from around December 2002 to April 201 (hereinafter “instant information exchange”); (2) among the information exchanged through such information, sales performance, etc. more than the sales price, etc. than the sales price; and (7) employees including the Plaintiff, etc. provided some false information to the competitor; and (3) it is difficult to conclude that the Plaintiff, etc., etc., were exchanged for the purpose of jointly determining the selling price, or used the information as a means of price gathering agreement; (3) it is difficult to view that the Plaintiff, etc. and seven companies, etc., including the Plaintiff, etc., provided false information to the competitor; and (4) there was a lack of reasonable explanation of the Plaintiff’s intent to increase the sales price or other similar reasons for the reason that there was a lack of agreement between the Plaintiff, etc. and the Plaintiff, etc., as well as the Plaintiff, etc., on the following changes in new gas prices.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles regarding the establishment of unfair collaborative acts, or by exceeding the bounds of the principle of free evaluation

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 Poe-dae (Presiding Justice)