[1] Requirements for presumption of agreement on unfair collaborative acts under Article 19(5) of the former Monopoly Regulation and Fair Trade Act

[2] The standard for determining circumstances where presumption of agreement on unfair collaborative acts under Article 19(5) of the former Monopoly Regulation and Fair Trade Act can be followed

[3] The commencement date and termination date of the collaborative act in order to determine the period of violation, which is an element for the calculation of penalty surcharges for unfair collaborative acts under Article 19(5) of the former Monopoly Regulation and Fair Trade Act

[1] Article 19(5) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004) / [2] Article 19(5) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004) / [3] Article 19(5) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004), Article 61(1) [Attachment 2] subparagraph 6 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 18356 of Apr. 1, 2004)

[1] [2] [3] Supreme Court Decision 2002Du4433 Decided May 30, 2003, Supreme Court Decision 2004Du7184 Decided September 22, 2006 (Gong2006Ha, 1823), Supreme Court Decision 2004Du9371 Decided October 12, 2006 / [1/2] Supreme Court Decision 2001Du5552 Decided December 12, 2003 (Gong204, 163), Supreme Court Decision 2004Du7160 Decided October 27, 2006

Sungyang Association Co., Ltd. (Law Firm Dazel, Attorneys Sog-dam et al., Counsel for the defendant-appellant)

Fair Trade Commission

Seoul High Court Decision 2004Nu4798 delivered on May 24, 2006

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

A. According to Article 19(5) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315, Dec. 31, 2004; hereinafter “the Act”), if the Fair Trade Commission proves two indirect facts of “an act falling under any of the subparagraphs of Article 19(1) of the Act by two or more enterprisers” (hereinafter “an act of substantially restricting competition in a particular business area”), and of “an act of practically restricting competition in a particular business area” (hereinafter “competitive act”), it is presumed that the enterpriser has agreed to perform such collaborative act (see, e.g., Supreme Court Decisions 2002Du4433, May 30, 2003; 2004Du9371, Oct. 12, 2006).

B. As to whether the act corresponds to the external form of action

The lower court determined that seven companies (other than the Plaintiff, Hyundai Cement Industries Co., Ltd., two cement industry Co., Ltd., two cement cement industry Co., Ltd., joint cement industry Co., Ltd., joint cement cement industry Co., Ltd., two cement industry Co., Ltd., Ltd., one cement cement Co., Ltd., one Japanese cement Co., Ltd., and the above seven companies (hereinafter referred to as “instant companies”) occupy approximately 90% of market share among the 10 domestic business producing cement (hereinafter referred to as “ordinary cement”) and the 10 domestic business producing mercury cement Co., Ltd., Ltd. and basic materials Co., Ltd. (hereinafter referred to as “basic materials”), were all of the acts of the said joint venture industry Co., Ltd., Ltd., Ltd. and the instant joint venture industry Co., Ltd., Ltd., Ltd. (hereinafter referred to as “this case Co., Ltd., Ltd., Ltd., Ltd. and their affiliates and joint venture companies, etc., are likely to enter into the instant cement industry sector or expand the instant cement industry sector.

In light of the records and the purport of the relevant Acts and subordinate statutes, the above fact-finding and judgment of the court below are justified, and there is no violation of the rules of evidence, violation of the rules of evidence, and incomplete hearing.

C. As to whether competition restriction is limited

According to the records, since slot powder is generally low compared to ordinary cement, as the number of business operators engaged in slot powder business increases or the number of business operators engaged in slot powder business increases or the number of business operators engaged in slot powder products manufactured and used by them only at the time of manufacture of ready-mixed which they produced increases the external sales, demand for slot powder is expected to increase and the demand for normal cement powder is expected to decrease, and accordingly, it is highly likely that the competition in cement manufacturing will be promoted in cement markets. Therefore, the act of the company in this case that the company in this case restricts the amount of ordinary cement supply of cement products or orders or pressures the company in this case to waive or restrict slot powder powder business with the main industry and the basic materials to waive or reduce slot powder powder business is an act that practically restricts fair and free competition between the company in this case and the company in this case, since it prevents entry of the above company and maintains the market power of the company in this case.

The judgment of the court below to the same purport is just, and there is no violation of the rules of evidence, violation of the rules of evidence and incomplete hearing.

D. Whether the presumption of agreement has been destroyed

According to Article 19(5) of the Act, in determining circumstances where enterprisers who are presumed to have agreed to engage in unfair collaborative acts may destroy presumption of unfair collaborative acts, the determination shall be made reasonably in accordance with the trade norms by comprehensively taking into account the characteristics and status of the market in the field of trade of the goods in question, the characteristic and mode of the goods, the distribution structure, all and the internal and external impacts on the market price, the status of each individual company's occupation in the same field of trade, demand or price changes on the business profits, market share, etc. of the individual company, the legitimacy of the business judgment in light of the individual business conditions of the enterpriser, the actual state of direct exchange of opinions, such as meetings between the enterprisers, etc., the degree of probability that the agreement may be reached even without consultation, the history of violation of the law, and the background of economic policy at the time (see Supreme Court Decisions 2001Du552, Dec. 12, 2003; 2004Du7160, Oct. 27, 2006).

The court below rejected the plaintiff's assertion that the presumption of unfair collaborative act becomes extinct on the ground that the plaintiff's evidence alone submitted by the plaintiff is that the company of this case, including the plaintiff, has a more rapid restriction on the supply amount of the A-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S

According to the above legal principles and records, the fact-finding and judgment of the court below are justified, and there is no error in the misapprehension of legal principles as to the destruction of legal presumption, the violation of the rules of evidence, or the incomplete hearing.

2. As to the Defendant’s ground of appeal

Article 61(1) [Attachment 2] 6 of the Enforcement Decree of the Act provides that the period of imposition of a penalty surcharge for an unfair collaborative act shall be "period of violation x sales of related goods or services x 5/100 x 5/100 x in relation to the period of violation Ⅱ. The decision of the standard of imposition of a penalty surcharge is 5.0 b. c. Article 19(5) of the Act provides that the starting date of the act shall be the date of the act of violation in case of Article 19(5) of the Act and the expiration date shall be the date of the act of violation in case the collaborative act is terminated by not later than the date when the corrective order is notified. According to Article 19(5) of the Act, an agreement on the unfair collaborative act shall be presumed to have been reached only when the act of a person upon the assent of all participating in the unfair collaborative act is restricted. Thus, the starting date of the act shall be two indirect facts that correspond to the external form of the above act in question and two 30.

The court below held that on May 28, 2003, when the basic materials were in the above supply restriction period, each written statement containing the contents such as the waiver of the development plan for the Incheon Northern Port, and the “to limit the scope of supply of the slurg products to self-consumption,” and that after the completion of the above renunciation notice, Lee Il-gu, the vice-chairperson of the two associations, notified the company of this case of this fact, "after consultation with the company of this case, the problem has been resolved smoothly, so that the other companies except the slurg cement Co., Ltd. have increased the cement supply volume on a daily basis from May 29, 2003, and around that time, the defendant could recognize the fact that the company commenced an investigation into the collaborative act of the company of this case, and therefore, the non-company of this case was released from the supply volume and the agreement on the collaborative act of this case was reversed on May 29, 2003.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error of law by misunderstanding legal principles as to the termination period of unfair collaborative acts.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)