Revocation, such as corrective order, etc., 2015Du49832

A Stock Company

Attorney Son Ji-yol, Justice Lee Jae-yol, Justice Park Jae-hwan, Justice Park Jae-sik, Counsel for the plaintiff-appellant;

Lee Jong-k, Gyeong-kin

Fair Trade Commission

Attorney Choi Su-hee and Kim Jong-hee, Counsel for the defendant-appellant

Litigation Performers Kim Jin-jin, Lee Jong-tae

Seoul High Court Decision 2013Nu45036 Decided July 22, 2015

October 27, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 2 and 3

Based on its reasoning, the lower court determined that the Plaintiff and C Co., Ltd. (hereinafter referred to as “Co., Ltd.” in the name of the corporation”), D, E, and F (hereinafter referred to as “Plaintiff and four business entities,” excluding the Plaintiff”) agreed to introduce an annual premium in February 2006 to reflect an increase in the annual price of products in the early February 1, 2006, without considering the amount of rent for each product, and that the Plaintiff’s act was carried out on April 5, 2006 (hereinafter referred to as “the first collaborative act”), but it was not sufficient to recognize that the Plaintiff violated the legal principles on changes in the annual price of products in proportion to the annual rate of rent for 0 years or less (hereinafter referred to as “unfair increase in the annual rate of rent for 10 years or more”), and that the Plaintiff did not enter into an agreement to change the price of products into 30 years or more in proportion to the annual rate of rent for 10 months or more (hereinafter referred to as “unfair increase in the price for 20 years or more”).

2. Regarding ground of appeal No. 1

A. Where there was an agreement on price determination, etc. under Article 19(1)1 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) and an action based on such agreement, the date on which the unfair collaborative act terminated is the date on which the unfair collaborative act ends. Thus, in order for a part of the enterprisers who participated in the agreement to terminate the unfair collaborative act, the date on which the unfair collaborative act ends is the date on which the unfair collaborative act ends. Thus, in order for the enterprisers who participated in the agreement to terminate the unfair collaborative act,

An act contrary to the agreement, such as reducing the price that would have existed if there was no collusion (see Supreme Court Decision 2007Du12774, Oct. 23, 2008).

B. After finding the facts as stated in its reasoning, the lower court determined that: (a) it is insufficient to recognize that the Plaintiff participated in the collaborative act of this case Nos. 2 and 3; (b) C and E, etc. introduced an annual premium of May 1, 2006; (c) increased the annual premium of 70,000 won per early 206, but the Plaintiff maintained it without raising an annual premium of 10,000 applied from April 27, 2006; and (d) the Plaintiff applied the 10th anniversary of July 13, 2006 to the Plaintiff based on its independent judgment; and (e) the Plaintiff’s act of raising the price of the Plaintiff’s 20th anniversary of its withdrawal from the 14th anniversary of its withdrawal from the 20th anniversary of its withdrawal from the 20th anniversary of its withdrawal from the 20th anniversary of its withdrawal from the 14th anniversary of its withdrawal from the 20th anniversary of its withdrawal from the 20th anniversary of its withdrawal from the 16th of its withdrawal.

C. However, the lower court’s determination is difficult to accept for the following reasons.

(1) The reasoning of the lower judgment and the record reveal the following facts.

① The market share of the Plaintiff and four business entities, both the Plaintiff and the Plaintiff, has reached about 90%, and the Plaintiff is somewhat different depending on the AD products except for the GL products that are not produced, but the Plaintiff’s market share accounts for approximately 33.4-84.9% of the largest share.

② Since July 2005, the annual price used as the main raw material of the AGG was so rapid since July 2005. However, since the second half of 2005 and January 2006, it was difficult for the AGGG to lower the base price of the AGGG in the second half of 2005 and to reflect an increase in the AGG in the annual price by again raising the base price.

③ On April 2006, the Plaintiff and the Plaintiff, and the four business entities, introduced the AD premium under the first collaborative act of this case for the first time in order to reflect the AD price increase in the AD price. Accordingly, the AD price increase in KRW 35,000 per ton was effective.

④ On February 7, 2006, M, which was the head of the domestic sales business in C, entered into around February 7, 2006, the title "measures to cope with the increase in the Azn (Zn)" (hereinafter referred to as "the file of this case") in which the Plaintiff consulted with the Plaintiff and four business entities, including the Plaintiff, around February 2006, carries out an increase in the Azhm Drhum price by examining the details of discount in the Amhumm price.

⑤ From July 13, 2006, the Plaintiff changed the method of calculating the annual premium, which was introduced under the collaborative act No. 1 of the instant case, to apply the AB table. Accordingly, the annual premium was additionally increased to n.e., the Plaintiff’s 4 business entities, and then, the Plaintiff increased the annual premium at a level similar to the Plaintiff’s above additional premium amount by reflecting the Plaintiff’s annual premium test method. The employees and employees of the Plaintiff et al. 6 and the four business entities, including the Plaintiff, visited AB, who were officers and employees belonging to the Plaintiff, several times during October to December 2006, suggest an additional increase in the annual premium, etc.

7) Around December 2006, the Plaintiff decided to maintain the level of annual premium, and accordingly, the Plaintiff and four business operators continued to apply the same level of annual premium as that of the previous business operators. In June 2006, the purport of the press reports (Evidence A11 and 12) is that “the Plaintiff increases the annual premium by means of an individual,” and the content of the press reports (Evidence A No. 13) around December 2006 is that “the Plaintiff has no plan to increase the annual premium.”

(2) Examining these facts in light of the legal principles as seen earlier, it is difficult to readily conclude that, for the following reasons, the Plaintiff, while around July 13, 2006 or late December 2006, expressed explicitly or implied intent to withdraw from the agreement with the Plaintiff and four other business operators, or committed an act contrary to the agreement, such as lowering the price that would have existed without collusion according to its independent judgment.

(1) The new price element of the Plaintiff’s instant collaborative act was introduced, and the instant collaborative act appears to have changed only a specific calculation method on the premise of the introduction of an AD. Furthermore, in June 2006, the Plaintiff did not accept an AD surcharge increase for the Plaintiff and four business entities except the Plaintiff from early 2006, but added an AD surcharge through a separate method. In November 12, 2006, the Plaintiff continued to maintain the level of the AD surcharge without accepting an AD surcharge increase required or recommended by the Plaintiff and four business entities. As such, even if the Plaintiff did not participate in the 2 and 3 collaborative acts, it is difficult to deem that the Plaintiff’s independent act was contrary to the agreement, since not only the new price element of the AD surcharge newly introduced in the instant case, but also the price level of DD surcharge was lower than the pre-determined year.

② Around June 2006 and around December 2006, the Plaintiff announced the same contents as the press reports, but among them, the officers and employees belonging to the Plaintiff and four business entities continuously recommended an increase in the annual premium, and it is difficult to view that the Plaintiff’s executive officers and employees clearly opposed to the recommendation. Thus, it is difficult to see that the Plaintiff expressed explicitly or explicitly the intention to withdraw from the collaborative act with respect to the annual premium that was introduced and applied jointly in the first collaborative act, and it is difficult to view that the Plaintiff and four business entities other than the Plaintiff and four business entities were aware of the Plaintiff’s intention to withdraw from the collaborative act.

D. Nevertheless, the lower court determined otherwise by deeming that the Plaintiff retired from the collaborative act on or around July 13, 2006 or at the latest in December 2006, and determined that the period of extinctive prescription for the instant disposition should be completed, and thus, should be revoked. In so doing, the lower court erred by misapprehending the legal doctrine on the termination or withdrawal of an unfair collaborative act, by misapprehending the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok