beta
Text
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
Reasons
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. The phrase “unfair collaborative act” prohibited under Article 19(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) includes not only explicit agreements but also implied agreements, as “an agreement on an act of unfairly restricting competition” (see, e.g., Supreme Court Decision 2001Du1239, Feb. 28, 2003). However, since the essence of this is that two or more enterprisers communicate with each other, it cannot be deemed that there exists any external form, such as “unfair collaborative act” listed in each subparagraph of the above provision, and it cannot be deemed that there exists any agreement, as a matter of course, and it should be proven that there exists a circumstance to recognize the reciprocity of the communication between enterprisers.
And the burden of proof is against the defendant who orders corrective measures on the ground of such agreement.
(2) On November 28, 2013, according to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning by comprehensively taking account of the adopted evidence. On the first instance court’s reasoning, it is difficult to accept the first agreement of this case by the following: (a) the statement of B, which directly corresponds to the fact that, around the first day of March, 2000, the working parties of the Plaintiff, EK, GSTEX, GSTEX Co., Ltd. (hereinafter “GSTEX”), and GSC Co., Ltd. (hereinafter “instant companies”) have agreed to attract competition of gas stations through the attraction of, and the management of, attracting of, alternative gas stations; and (b) the statement of B, a working team leader of GSST, who is merely a working team leader, agreed on the instant agreement without any specific discussion or direct or indirect instruction of superior of the company prior to the instant agreement.