[1] The method of proving the presumption of agreement on unfair collaborative acts under Article 19(5) of the former Monopoly Regulation and Fair Trade Act and the standard of determining whether one of the indirect facts about the presumption of agreement on unfair collaborative acts corresponds to the appearance of the act

[2] The case holding that the construction company's act of setting "the intermediate interest and the late payment system" in the way of selling an apartment unit in the Dongbag Housing Site Development Zone shall be presumed to have "the agreement on unfair collaborative acts" under Article 19 (5) 2 of the former Monopoly Regulation and Fair Trade Act under Article 19 (5) of the same Act

[3] The case holding that, in determining whether an unfair collaborative act under Article 19 (5) of the former Monopoly Regulation and Fair Trade Act exists with regard to the determination of the sale price of apartment construction companies in the Dong Bag Housing Site Development Zone, the relevant goods market is the "new apartment apartment market" and the relevant geographical market is defined as the "Dong Bag area"

[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(1)2 and (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)

[1] Supreme Court Decision 99Du6514, 6521 Decided March 15, 2002 (Gong2002Sang, 903) Supreme Court Decision 2004Du3045 Decided December 7, 2006 (Gong2007Sang, 135) Supreme Court Decision 2006Du11583 Decided February 15, 2008 / [3] Supreme Court Decision 2004Du14564 Decided November 9, 2006

Plaintiff 1 and one other (Law Firm Rate, Attorneys Shin Sung-sung et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm Doll, Attorneys O Jae- Chang et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Nu17206 decided Feb. 15, 2007

Of the judgment below, the corrective order and publication order concerning the apartment sale price and the penalty surcharge payment order are reversed, respectively, and this part of the case is remanded to the Seoul High Court. The remaining appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. On the first and fourth points

A. Comprehensively taking account of the adopted evidence, the lower court acknowledged that 10 construction companies, including Plaintiff 1 and Plaintiff 2, (hereinafter “instant companies”), including Plaintiff 1 and Plaintiff 2, had sold apartment buildings with 8,554 units (hereinafter “the instant apartment buildings”) located in the Gambi-ri-dong Housing Site Development Zone (hereinafter “Dongbun-si”), which were located in the Gambun-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si. The lower court determined that the company’s final apartment sales price was 7 million won higher than that of the instant apartment, and that the company’s average sale price was 6,937,946 won close to the company’s 70 billion won-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si.

B. However, we cannot agree with the above determination by the court below for the following reasons.

If the Fair Trade Commission proves two indirect facts such as “an act falling under any of the subparagraphs of Article 19(1) of the Act” (hereinafter “an act practically restricting competition in a particular business area”) pursuant to Article 19(5) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315, Dec. 31, 2004; hereinafter “the Act”) and “an act practically restricting competition in a particular business area,” it is presumed that the enterpriser has agreed to engage in such collaborative act, and further, it does not have to prove the circumstantial facts to presume the agreement or implied understanding of the enterprisers (see, e.g., Supreme Court Decision 99Du6514, 6521, Mar. 15, 2002). In light of the purport and structure of the provision regarding the presumption of such unfair collaborative act, the circumstances leading up to the conclusion of the agreement or the circumstance leading up to the conclusion of each enterpriser’s agreement should be considered in light of the process and structure of the agreement.

According to the records, even if the average selling price of the apartment of this case is 6,937,946 won as acknowledged by the court below, the average selling price of each company is 6,70,000 to 7,610,000 won even if it is excluded from non-party 1 corporation with strong individual characteristics. The final selling price of the apartment of this case was 6,370,000 won per square year to 7,770,000 won, and if it is subdivided into similar types, it is difficult to 480,000 won per square year to 6,375,000 won per square year to 6,850,000 won per square year to 6,532,34,000 won per square year to 6,7160,000 won per square year to 7,979,000 won per square year to 6,769,000 won per square year to 7,000 won.

The lower court, among the facts acknowledged, determined that the act of apartment sale price in this case was consistent without considering the circumstances that seem to go against the substantial consistency, on the premise that the appearance of the act of setting the apartment sale price in this case should be considered in light of the fact that the company in this case had discussed about the adjustment of the apartment sale price at the consultative body meeting held on July 16, 2003. However, without considering the circumstantial facts, the lower court determined that the act of setting the apartment sale price in this case was consistent with the appearance of the act of setting the apartment sale price in this case. In so determining, the lower court erred by misapprehending the legal doctrine on the external concurrence of the act as stipulated in Article 19(5) of the Act and failing to exhaust all necessary deliberations. The Plaintiffs’ ground of appeal assigning this error is with merit.

2. On the second ground for appeal

After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, and acknowledged the facts as indicated in its reasoning, such as the fact that all the companies except once and twice intermediate payments against the 44th parallel 202 households of Nonparty 2, among the instant companies, set the intermediate payment interest and the post payment system in the manner of paying the instant apartment, and determined that the act of determining the intermediate payment interest and the post payment system of the instant companies, including the Plaintiffs, constitutes an agreement on unfair collaborative acts under Article 19(5)2 of the Act pursuant to Article 19(5) of the Act.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the external appearance of the act, as otherwise alleged in the ground

3. On the third ground for appeal

The relevant market, which is defined as the premise of the determination of unfair collaborative acts under the Act, shall be determined by comprehensively taking into account the similarity of functions and utility of the goods subject to the transaction, recognition of the substitutability of buyers, and the form of decision on management related thereto (see Supreme Court Decision 2004Du14564, Nov. 9, 2006, etc.).

The lower court determined that the relevant geographical district of this case can be defined as a "Dongdong District" in full view of the following, comprehensively taking into account the following factors: (a) the new apartment site in this case can be defined as a "new apartment site market" and, in the case of an apartment unit sold by a large-scale housing site development project, it can be developed into a small city with various administrative, educational, and convenience facilities, because it is developed into a small city with housing site development zone in itself as an apartment site development zone; (b) the apartment site in this case can be seen as divided into a market in each district where the apartment site is located; and (c) the apartment site in this case has no large-scale sales in any adjacent area other than the Dongba District at the time of the sale of the apartment site in this case; and (d) the fact that there is no sale in lots outside the Dongba District.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the determination of related market.

4. On the fifth ground for appeal

In determining circumstances in which a business operator who is presumed to have agreed on unfair collaborative acts pursuant to Article 19(5) of the Act can destroy such presumption, it shall be reasonably determined in accordance with the trade norms by comprehensively taking into account the characteristics and status of the market in the relevant product transaction field, the characteristics and patterns of the product, the distribution structure, the structure of pricing, the overall internal and external impacts on market prices, the status of each individual business entity in the same trade field, the impact of the price changes on the individual business operator's operating income, market share, etc., the legitimacy of the business judgment, the actual state of direct exchange of opinions, such as meetings between the business operators, the degree of probability that the agreement may be reached even without consultation, the experience in price reduction and the history of violation of law, and the background of economic policy at the time (see Supreme Court Decision 2004Du8323, Nov. 23, 2006).

The lower court rejected the Plaintiffs’ assertion that the presumption of an agreement on an unfair collaborative act is extinct, on the ground that there is no evidence or evidence supporting that the instant company’s implementation of the intermediate payment and the follow-up payment system, in fact, was conducted independently in accordance with each business judgment without any adjustment or understanding, and there was no evidence to view that there was no such an act was not a collaborative act in accordance with the evidence or agreement.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence and misapprehension of legal principles as to the reversal of presumption of agreement as otherwise alleged in the ground of

5. On the grounds for appeal Nos. 6 to 8

The court below held that, on the premise that the act of apartment sale price and the act of determining the interest of intermediate payment and the late payment of the company in this case's apartment sale price are unfair collaborative acts in violation of Article 19 (1) of the Act, it is appropriate to order the plaintiffs not to repeat a violation of the Act due to corrective measures pursuant to Article 21 of the Act, and to publish the fact that the defendant received a corrective order from the defendant on the newspaper on the ground of the violation of the Act, and that the defendant did not abuse or abuse the discretionary power in calculating and imposing the penalty surcharge against the

However, the defendant's corrective order, publication order, and penalty surcharge payment order against this part is illegal in this case where it is difficult to recognize that apartment sale price of the company in this case is consistent with the appearance of the apartment sale price. However, for the above reasons, the defendant's corrective order, publication order, and penalty surcharge payment order concerning the act of fixing intermediate payment and late payment is legitimate, and there is no error in the misapprehension of legal principles as to corrective order, publication order, and penalty surcharge as otherwise alleged in the ground

6. Conclusion

Therefore, the part of the judgment of the court below regarding the corrective order and publication order concerning the apartment sale price is reversed, and the part of the penalty surcharge payment order is unlawful only for some violations (the part concerning the apartment sale price fixing act) but there is no evidence to calculate the penalty surcharge based on some violations in the lawsuit, and it is all reversed and remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)