2014Nu65914 Revocation of a penalty surcharge payment order

A Stock Company

Fair Trade Commission

June 15, 2016

July 6, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s corrective order stated in the attached Form No. 2014-114, which was issued by the plenary session resolution on May 26, 2014, and the penalty surcharge payment order issued by the Plaintiff is revoked.

1. Facts recognized;

A. Status of the plaintiff, etc.

The plaintiff, Sodoin Co., Ltd. (hereinafter referred to as the "Modoin"), and the name of another company is omitted in the name of the other company, and the "five companies, such as the plaintiff, etc." (hereinafter referred to as the "five companies, such as the plaintiff, etc.") are business operators engaged in the manufacture and sale of white paper, etc., and are business operators under Article 2 (1) of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Fair Trade Act").

(b) Characteristics and classification of white paper;

1) 백판지(白板紙, White Duplex Board)는 여러 층으로 겹뜨기를 한 다층 판지의 한 종류로서 편면 또는 양면에 표백화학펄프를, 그 중간층에 폐지나 쇄목펄프 등을 사용하여 제조한다. 백판지는 주로 내부 포장이나 낱개 포장에 사용되는데 크게 일반백판지와 고급백판지로 구분된다.

2) The main difference between the general white paper and the high-class white paper is in raw materials. The general white paper is made by mixing the general white paper with pulp paper in a certain proportion, and the high-class white paper is manufactured by 100% pulp paper. As a result, the market price of the high-class white paper is at least 1.5 times higher than the market price of the general white paper.

3) The characteristics and uses of the main white paper are as follows:

A person shall be appointed.

A person shall be appointed.

(c) Present state of domestic white paper markets;

1) The domestic white paper market led five companies, including the Plaintiff, and the central government. However, the central government discontinued business around the second half of 2004, and five companies, including the Plaintiff, etc., produce and sell most of the domestic white paper.

2) The general white paper produces and sells all 5 companies, including the Plaintiff, but high-class white paper produces and sells only 3 companies, such as Korea-domination, clean nas, and C (B imports and sells high-class white paper, and the Plaintiff does not deal with high-class white paper). The domestic white paper market size as of the sales amount in 2012 is presumed to be approximately KRW 5,57.5 billion. Of them, the general white paper sales amounting to KRW 40,48.2 billion is about KRW 109.2 billion.

3) The market share of five Plaintiff et al., including the Plaintiff, based on sales volume from 2007 to 2012, is as follows:

A person shall be appointed.

(d) A domestic white paper price-fixing structure;

1) The price of the white paper is determined based on pulp, notice, subsidiary material, personnel expenses, and sales and management expenses, which are raw materials, and the proportion of the raw materials among them is the highest. As of 2011, the proportion of the raw materials in the cost was approximately KRW 45% in the case of the general white paper and approximately KRW 64% in the case of the high-class white paper.

2) The sale price of white paper is determined by means of multiplying the base price of each type by the discount rate. The base price is the price of a certain standard product which serves as the basis for each type of paper, and is determined by dividing it for the end-user and wholesale wholesalers in accordance with the distribution structure, and where the distribution structure is identical, the base price is also the same. On the other hand, the discount rate is determined differently through negotiations taking into account individual factors, such as quantity, credit, transaction conditions, etc. by each customer. The base price is increased when a higher portion of ordinary cost, pulp or energy cost is raised, and a short-term price change based on yellow dust or other raw materials price decline, inventory quantity, etc. is made through the change of discount rate.

E. The defendant's disposition

1) On May 26, 2014, the Defendant ordered the Plaintiff to take corrective measures and pay penalty surcharges as indicated in the attached Form on the ground that “five companies, including the Plaintiff, etc., from February 2007 to April 2012, 2012, agreed to and implemented an unfair collaborative act prohibited under Article 19(1)1 of the Fair Trade Act by withdrawing the base price increase, discount rate, etc. with a view to raising or maintaining the selling price of the general white paper” (the Defendant recognized the unfair collaborative act as to the remaining four companies other than the Plaintiff in the above resolution).

2) The Defendant imposed a penalty surcharge on the Plaintiff pursuant to Articles 22 and 55-3 of the Fair Trade Act, Articles 9 and 61 of the Enforcement Decree of the Fair Trade Act, and the detailed standards, etc. for imposing a penalty surcharge (amended by Defendant Notice No. 2012-6, Mar. 28, 2012). The specific calculation details are as follows.

(A) Related sales: 270,752,571,000 won (the sum of sales of general white paper sold domestically by the Plaintiff from February 28, 2007 to April 13, 2012), excluding value-added taxes;

(B) Base rate: 7% (any significant violation).

C) Second co-ordination by an element of the actor

○ 10% of the primary adjusted penalty surcharge 10) shall be increased in consideration of the involvement of executives.

○ Reduction of 30% of the first adjusted penalty surcharge in consideration of investigation cooperation

D) Additional adjustment

The second adjustment penalty surcharge shall be reduced by 30% in consideration of the economic decline, etc. in the 00 pulp, paper and paper sales business.

In relation to the actual ability to bear, 35% of the secondary adjusted penalty surcharge shall be mitigated in consideration of the fact that the average net income for the three immediately preceding years as of the date of deliberation by the plaintiff is the person with weighted average capacity.

(e) Determination of a penalty surcharge: 5,306,000,000 won (be less than KRW 5,306,000);

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. Whether the instant order to pay penalty surcharge is lawful

A. As to the assertion that he did not participate in the collaborative act for a certain period

1) Summary of the Plaintiff’s assertion

Under the premise that the Plaintiff and C participated in the instant collaborative act after jointly investing in D and establishing D, the Defendant recognized the Plaintiff’s liability for the period during which D participated in the instant collaborative act. However, insofar as D is a separate legal entity completely distinguishable from the Plaintiff, it is unreasonable to impose upon the Plaintiff the Plaintiff the responsibility for the part participating in the instant collaborative act. During the period of D’s participation in the instant collaborative act, there is no fact that D did not have participated in the instant collaborative act and has instigated D to engage in the instant collaborative act. Accordingly, the instant disposition based on an erroneous fact finding is unlawful.

2) Determination

In full view of the facts acknowledged earlier and the evidence and the following circumstances acknowledged by the evidence Nos. 1, 4, 5, 7, and 8, it is reasonable to view that the Plaintiff was actually involved in the instant collaborative act through D from February 2, 2007 to December 11, 2007, which is the date D’s dissolution. Accordingly, the Plaintiff’s assertion is rejected.

① On October 1, 2006, D is a company established by the Plaintiff’s investment of KRW 900 million and KRW 600 million in order to jointly sell the products produced by the Plaintiff and C by means of OEM. The Plaintiff and C have concluded a memorandum of understanding regarding the establishment of D, and the said memorandum of understanding includes the following:

The plaintiff (C) and Eul (C) intend to jointly establish and operate a separate selling company (hereinafter referred to as "company") to be exclusively in charge of the joint sale of white paper (hereinafter referred to as "products") which are products produced by both the two companies, and they enter into a MOM statement with the following contents.The company shall be supplied and sold by Gap and Eul, and the supply price of the products shall be the quantity of the two companies as of the base date agreed upon between Eul and Eul.2. The quantity of the products sold in Korea shall, in principle, be examined and determined by the future TF team through an appropriate composition of the internal sales volume for the last three months from the date of conclusion of this MO and the production volume of Gap and Eul. The sales unit price of the company shall be the price raised by 5% at each trading line, which shall be appropriated for the operating expenses of the company, and the increase shall be appropriated for the operation expenses of the company: The details of the current sales unit shall be determined to be 3 months retroactively from the date of conclusion of the MOM statement to the maximum extent possible.

According to this, it is confirmed that the Plaintiff and C determined the price of the white paper supplied to D and D and D sold them by raising an amount equivalent to 5% of that price. D’s supply price is automatically determined by the supply price determined by the Plaintiff and C, and D cannot be deemed to have the right to independently determine its own selling price. D’s payment was related to the Plaintiff and C of the remainder after deducting a certain sales commission from the selling price of the general white paper produced by the Plaintiff and C, and thus, the Plaintiff and C can be deemed to have been in the position of substantial transaction in the domestic general white paper market even during the period of sales by D.

② In order to raise sales price, D participated in the agreement on the reduction of operation and the change of specifications of certain species among the violating enterprisers. The joint decision-making on the manufacturing process and product specifications, etc. is not a matter that D, a specialized sales company, can decide independently, but can not be conducted without the involvement of the Plaintiff and C producing the general white paper. The Plaintiff and C, after D establishment, actively participated in the decision-making on the instant collaborative act by mediating D from the time of dissolution to December 20, 207.

③ At the time of establishment D, E, the representative director of C, and F, the representative director of C, were registered as auditors. After D’s dissolution, the Plaintiff established H as a subsidiary of the Plaintiff’s 100%. After D’s dissolution, the Plaintiff, who was an employee of D, was a member of D’s operating team, retired from office as the head of H’s operating team after D dissolution, and continued to participate in the instant collaborative act on November 30, 2008, while continuing to engage in business and marketing in the same manner as D. The other employees of D, who were the Plaintiff Company, were changed to H, continued to participate in the instant collaborative act. After D’s dissolution, part of H’s employees were returned to the Plaintiff’s operating organization. After D’s dissolution, the Plaintiff’s former employees were also changed to D and returned to C’s personnel status or most of D’s personnel members after D’s dissolution.

④ At the time of the Defendant’s investigation, K’s employees stated to the effect that “ even if there was a representative of D’s E in the back-to-date industry group, the Plaintiff and C was considered to have been present at the meeting.” L, an employee of B, discussed the price increase or the reduction of operation at the 007 meeting, and the Plaintiff and C, a joint sales agent, participated in the meeting. However, the Plaintiff and C, a joint sales agent, was the Plaintiff, and the J was from the Plaintiff, but in fact, the Plaintiff and C were present at the team leader meeting instead of the Plaintiff and C.”

B. Regarding the illegality of the penalty surcharge payment order

1) Summary of the Plaintiff’s assertion

The collaborative act of this case was conducted under the initiative of Han-gu, one-third business entity in the general white paper market, one-third business entity, one clean, and Eul, and the plaintiff had no choice but to play a memorial role because the market share falls short of 10% among five business entities. Even though the plaintiff had performed the above role, the defendant did not take any additional measures in consideration of the plaintiff's low market share, the impact of the plaintiff's act on the market, the long-term depression in the white paper business, and the ability to bear the plaintiff's burden. However, the defendant did not take such measures even though it is reasonable to reduce additional measures in consideration of the plaintiff's low market share, the impact of the plaintiff's act on the market, the long-term depression in the white paper business, and the ability of the plaintiff to bear the burden. For the foregoing reason,

2) Determination

A) When the Defendant imposes penalty surcharges on a violation of the Fair Trade Act and imposes penalty surcharges, the Defendant has discretion to determine the specific amount of penalty surcharges within a certain scope prescribed by the Fair Trade Act. However, if the Defendant erred by misapprehending the fact that served as the basis for imposing the penalty surcharges or violates the principle of proportionality and equality while exercising such discretion, it constitutes a deviation or abuse of discretionary power (see, e.g., Supreme Court Decision 2012Du1773, Nov. 28, 2013).

B) Comprehensively taking account of the facts acknowledged earlier and the following circumstances acknowledged by the evidence, it is difficult to deem that the instant penalty surcharge order exceeded the scope of discretion by failing to additionally consider the factors to be mitigated, or by violating the principle of proportionality or the principle of equity, even in light of the circumstances of the Plaintiff’s internal duty. Accordingly, the Plaintiff’s assertion is rejected.

① The Plaintiff, etc., a business operator of the general white paper market in which five companies, including the Plaintiff, etc. form an over-point market structure, actively participated in the agreement and implementation of the instant collaborative act by attending, without being able to jointly determine the selling price of general white paper meetings or team leader-level meetings in the industry to present their opinions. The mere fact that the Plaintiff accounts for a relatively low market share among five companies, such as the Plaintiff, etc. in the general white paper market does not necessarily mean that the Plaintiff simply participated in the instant collaborative act or only carried out the abstract role.

② The Defendant reduced the secondary adjustment penalty surcharge by 30% by taking account of pulp, paper, and the chilling of the sales market, etc., and imposed an additional reduction by 35% of the secondary adjustment penalty surcharge in consideration of the fact that the average net income for the three years immediately preceding the date of deliberation by the Plaintiff was equal to the average net income for the three years immediately preceding the date of deliberation, and thus, it is deemed that the Plaintiff’s actual ability to pay penalty surcharge, market situation, etc.,

③ In the Defendant’s partial decision-making cases cited by the Plaintiff, it is difficult to find that there is a difference between the instant case and the Defendant, in light of the background leading up to the collaborative act and the details of calculation of penalty surcharges. The evidence submitted by the Defendant alone is insufficient to recognize that the Defendant, without reasonable grounds, arbitrarily treated the Plaintiff as having

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.

Judges Lee Dong-won

Judges Yoon Jong-dae

Judge Lee Jae-soo

1) As the same meaning as the abolition refers to the paper of closed newspaper, paper of closed frame, other notifications, etc.

2) SC is a representative of the general white paper. SC is a representative of the general white paper.

3) ACB is mainly used as a package for agricultural products with SC 220 or 240 square meters (referring to the weight per unit area, and the unit is g/land size) and is used as a package for agricultural products, and it is used to distinguish it from the white paper for industrial products.

4) IV (Ivory) generally is a paper manufactured by mixing baculp with baculp and baculp, using pulp up to the next floor, and has a white paper on the inside of the packaging. On the other hand, IV (IV) and IV special grade constitute high-class white paper, not general white paper.

5) TM (Toptila) is a package board as the most generalized package board with SC, which has been produced as a non-airated product in the past, but has been recently produced as a non-airated product.

6) GK (Gold) is a e-mail bag as a e-mail bag and is similar to KB, Scul land, and CPH, and is used as e-mail or fink stuff mainly.

① GK： 한솔제지가 생산하는 제품으로 염료를 사용하여 표면을 노랗게 염색한 판지이다.

(2) KB: It shall be manufactured by using pulp and notice, which are not sealed as a clean straw product produced by a clean straw.

③ SC황토지: C가 생산하는 제품으로 황토를 이용하여 표면을 노랗게 염색한 판지이다.

④ CPH (Coated Piza Hggrity): The paper manufactured by using pulp, which is not white, as a product produced by B.

7) The CBard is a product manufactured by mixing notice and tailum pulp, which is at least 50% higher than that of pulp in order to enhance the strength.

8) High-class white bags are different from their names for each branch office. Handok is AB, a clean RIV (Royal Ivory) A. C uses the name of DAB (Detraard) or I-P per unit.

9) The Defendant determined that the collaborative act ends as follows. On April 4, 2012, 201, Han Jin was clean; on April 10, 2012; and on April 13, 2012, B, a document stating the intent to discontinue the collaborative act of each of the instant cases was terminated by sending it to other enterprisers. In the case of the Plaintiff and C, since the market share in the general white paper as of April 2012 is combined with the market share in the general white paper as of April 2012 and is less than 20%, it is difficult to maintain the effect of the agreement by the agreement with the Plaintiff and C alone after the reversal of three copies, such as Han Jin-do, etc., in fact, it is difficult to maintain the actual effect of the agreement, and in light of the fact that the price was reduced continuously thereafter, and that the Defendant cooperated in the investigation, it is deemed the date of termination of the collaborative act.

10) The basic penalty surcharge calculated by multiplying the relevant sales by the base rate for imposition refers to the penalty surcharge calculated by the adjustment by the elements of the act of the violating enterpriser. However, in the case of the Plaintiff, the basic penalty surcharge is the same as the primary adjustment penalty surcharge, since there was no adjustment by the elements of the act.

11) D was dissolved through a temporary general meeting of shareholders on December 20, 2007 and completed the liquidation procedure on April 29, 2008, as the Plaintiff and C did not reach the original expectation.

A person shall be appointed.