Tyang Industries Co., Ltd. (Law Firm Sejong, Attorneys Ansan-jin et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Government Law Firm Corporation, Attorney Park Si-hwan, Counsel for defendant-appellant)

October 27, 2016

1. The plaintiff's claim is dismissed.

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

The Defendant’s corrective order in attached Form 1, which was issued by the Decision No. 2016-068 on March 3, 2016, and the penalty surcharge payment order in attached Form 2, shall be revoked.

1. Basic facts and circumstances of dispositions;

A. Status and general status of the plaintiff, etc.

1) In addition to the above companies, the Plaintiff, the East Cement Co., Ltd., the Amology Co., Ltd., the Amology Co., Ltd., the Han Cement Co., Ltd., and the Hyundai Cement Co., Ltd. (hereinafter collectively referred to as “stock company” is omitted. Among six companies including the Plaintiff, the remaining companies excluding the Plaintiff are referred to as “Dongyang”, “Amology”, “Amology”, “Korea LAm,” and “SAm”) are those engaged in cement manufacturing business as prescribed by Article 2 subparag. 1 of the Monopoly Regulation and Fair Trade Act (amended by Act No. 11758, Apr. 5, 2013; hereinafter referred to as “Fair Trade Act”).

2) The general status of six companies, including the Plaintiff, is as listed in the following table.

The current general status of six plaintiffs, including plaintiffs, etc.

본문내 포함된 표 (단위: 백만 원, 명) 사업자명 연도 자본금 매출액 영업이익 당기순이익 상시고용종업원수 설립일 동양 2014 53,679 553,051 54,945 301,598 771 1990.12.22. 2013 67,099 607,800 12,228 △222,629 797 2012 63,904 611,755 34,571 △69,647 849 성신 2014 126,109 595,267 44,882 8,504 688 1967.3.16. 2013 126,109 583,899 45,071 3,621 673 2012 104,197 521,280 14,859 3,423 623 원고 2014 401,516 1,387,093 117,965 79,941 999 1962.5.14. 2013 401,516 1,401,315 84,194 15,628 1,009 2012 401,516 1,333,799 81,942 13,148 1,030 아세아 2014 10,955 14,314 6,575 6,769 11 1957.4.26. 2013 7,216 293,332 37,791 23,560 10 2012 23,695 349,837 26,796 13,811 469 한일 2014 37,727 1,012,431 121,877 86,911 630 1961.12.28. 2013 37,727 963,751 129,470 71,682 623 2012 37,727 839,335 71,489 △71,851 634 현대 2014 43,775 325,072 48,684 282,944 377 1969.12.30. 2013 36,720 325,628 45,665 △347,378 395 2012 36,720 296,778 29,210 △37,850 409

(b) The outline of cement industry and current status of cement markets;

1) Cement is a derivative example of cement as a result of chemical reaction from mercury and heat generation, and a representative example is tin 1) mold cement ("Portland", "1 type cement") which is used most in the horizontal cement, and is used at least 95% in the steel-frame concrete construction method which is used most in civil engineering and construction works, and is often called as cement.

2) Cement industry is an industry manufacturing cement, the market size of which is approximately KRW 3.5 billion as of the year 2012. The main features of which are the industry of the typical excess point system are the structure where the upper seven companies occupy more than 85% of the total domestic market and there is no significant change since 200, and the export share is less than 10%, and the differentiated elements between the products are very small.

3) Domestic cement demand shows an increase since 2005, which has been converted into a reduced rate from 2008 to 2012. The cement consumption per capita has continuously decreased since 2007. Meanwhile, cement price has continuously decreased from 2010 to 2011.

(c) Six acts, including the plaintiff, etc.

1) Agreement on the market share (hereinafter “instant agreement”)

A) Around the second half of 2010, there was a consensus among six companies, including the Plaintiff, that there was a need to maintain the specified market share in order to promote the stabilization of transactions in the cement market. Accordingly, the chief commissioner, etc. of six companies, including the Plaintiff, agreed to hold several meetings from the second half of 2010 to February 201 and adjust the market share based on the actual shipment volume. Pursuant to the agreement on the market share above, six companies, including the Plaintiff, etc., agreed to adjust the market share based on the actual shipment volume. The market share of the Plaintiff, etc. was 22.85%, 15.05%, 14.20%, gender, 8.0%, 14.95%, 14.95%, and 11.40%, respectively.

B) In order to observe the agreed market share, six companies, including the Plaintiff, etc., conducted measures such as checking of cement shipment volume, adjustment of excess or shortage of the market share in excess of the market share or in excess of the market share, ascertaining the actual status of the payment of transportation subsidy to control over excessive sales, preparing a standard rate table, and conducting verification of the authenticity of the statistics of shipping volume.

2) Note 2) A cement price agreement (hereinafter “instant price agreement”)

A) On March 1, 2011, six chief directors, including the Plaintiff, agreed to raise the 1st cement price from April 1, 201 to 67,500 won, which fell below 50,000 won by holding a meeting around March 201, and six companies including the Plaintiff, etc. sent to each customer a public notice stating that the 1st cement price shall be increased by 67,500 won between March 17, 201 and March 21, 201. On the other hand, six companies including the Plaintiff, etc., who did not accept the 1st cement price discount, were discontinued from May 26, 201 to June 8, 2011.

B) On November 201 through December 2011, 201, six chief directors of the headquarters, including the Plaintiff, discussed and agreed on a price discount in which they hold a meeting at the Vice-President of the Cement Association, “The time of the increase of Class A cement price in 2012 shall be January 201, 201, the width of the increase shall be the lowest of KRW 77,00, and the increased public notice shall be the highest of KRW 77,00, and the increased public notice shall be sent to the customer on December 201, 201. In addition, six companies, including the Plaintiff, sent a public notice at the price of 2012, pursuant to the aforementioned agreement, to the customer.

D. The defendant's disposition

1) On March 3, 2016, the Defendant issued a corrective order and a penalty surcharge payment order in attached Form 1 (hereinafter “instant penalty surcharge payment order”) to the Plaintiff on the ground that the instant market share agreement and the instant price agreement (hereinafter collectively referred to as “instant collaborative act”) constituted “unfair collaborative act” under Article 19(1)3 and 1 of the Fair Trade Act.

2) In accordance with the provisions of Articles 22 and 55-3 of the Fair Trade Act, Articles 9, 61, and 61 [Attachment 2] of the Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 24697, Aug. 27, 2013; hereinafter “Enforcement Decree of the Fair Trade Act”), and the public notice on the detailed criteria for imposing penalty surcharges (amended by Defendant’s notice No. 2013-2, Jun. 5, 2013; hereinafter “the public notice of penalty surcharges”), the Defendant calculated the penalty surcharges against the Plaintiff as follows:

A) Criteria for calculation

(1) Relevant sales

(A) The instant collaborative act constitutes a single collaborative act. The date of the instant collaborative act is the date when it can be first embodied among the date of commencement by each business entity, and is the date when it is most favorable to six companies, including the Plaintiff, on March 1, 2011, and the termination date of the instant collaborative act is deemed to be April 24, 201, which is the date when it can be embodied among the date of commencement by each business entity.

(B) Matters agreed in the collaborative act of this case are market share and class 1 cement price. Six companies, including the Plaintiff, etc., have set the criteria for calculating the market share in the instant collaborative act as the shipping volume of the first cement (100%) cement (80%) type cement (50%) type 1 cement (10%) type 3) type 1 cement (1), slot cement (50%) type 3) type 3) alternative cement (50%) so the product concerned is the product concerned.

(C) The relevant sales during the period of the Plaintiff’s violation (from March 1, 2011 to April 24, 2013) are KRW 1,347,534,789,00.

(2) Standard imposition rate

In full view of the fact that the collaborative act in this case may be deemed to be the basis of the collaborative act in order to eliminate the depression of the industry, and the fact that there is a difficulty in deeming that the collaborative act has a significant impact on the unfair profit and demand source generated from the collaborative act, it shall be deemed to constitute a "serious act" and 5% of the imposition standard rate shall

(3) Criteria for calculation

The criteria for calculating the Plaintiff’s penalty surcharge calculated by multiplying the relevant sales calculated as above by the imposition standard rate are as follows:

Plaintiff 1,347,534,789,00 won for 57,376,739,00 won for calculation of the base rate of sales related to the table contained in the main sentence.

B) The primary adjustment criteria

There is no reason for the first adjustment.

C) the secondary adjustment criteria

(1) The Plaintiff was unable to conduct the Defendant’s investigation by concealing materials and replacing PC with another employee’s PC. As such, 20% of the first adjustment criteria may be aggravated.

(2) The Plaintiff was subject to an administrative fine of KRW 100,000,000 under the provision of Article 69-2 of the Fair Trade Act for the same reason, so the amount shall be subtracted from the increased amount in accordance with the provision of the proviso of Article 69-2 of the Fair Trade Act.

(3) The Plaintiff’s senior executives, including managing director, managing director, vice president, or managing director, were directly involved in the instant collaborative act. Therefore, 10% of the first adjustment criteria shall be aggravated.

(4) Accordingly, the criteria for calculating the second adjustment of the Plaintiff are as follows.

Plaintiff 67,376,739,000 won 20% of 87,489,760,000 won among the executives who interfere with the investigation standards for the second adjustment calculation of the second adjustment calculation criteria included in the main text

Note 4)

D) Determination of imposition penalty surcharges

The final imposition penalty surcharge of less than a million won is KRW 87,489,00,00.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1, purport of whole pleadings

2. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

A. The illegality in calculating the relevant sales amount

1) The portion on which the Plaintiff supplied cement to three subsidiaries, one of its affiliates

During the period of the instant collaborative act, the Plaintiff, as an affiliated company of the Plaintiff, supplied double-mixeds, pair basic materials, and Korean basic materials, which are subsidiaries. Since the said three subsidiaries fall under the Plaintiff and a single business entity, the first cement transaction between the Plaintiff and the three subsidiaries is practically different from the internal transaction between the Plaintiff and the three subsidiaries within a single business entity. As such, the Plaintiff’s first-class cement sales for the three subsidiaries should be excluded from relevant sales.

2) The part corresponding to the transportation cost of the Plaintiff’s cement sales

There is only difference between the arrival level(5) method and the 6) method of cement transport and the 6) method only between whether cement manufacturing company directly or indirectly pays cement transport costs, and the cement transport costs are substantially identical in that cement manufacturing company bears the cost of transportation. Since cement transport costs are determined by agreement with the transportation company, there is no room to regard that the instant collaborative act would be affected by the instant collaborative act or the Plaintiff would take a benefit equivalent to cement transport costs. Accordingly, in the case of the method of arrival, the portion of cement transport costs should be excluded from related sales.

(b) Violation in calculating the imposition standard rate;

In light of the following: (a) the restriction on competition of the instant collaborative act is extremely minor and cannot be said to have no effect on increasing efficiency; (b) the Plaintiff’s unjust enrichment is almost nonexistent due to the instant collaborative act; and (c) the Defendant, unlike precedents, did not take into account various circumstances related to the instant collaborative act, such as the inevitability of price increase due to the increase of manufacturing cost; (b) the strong bargaining power of the ready-mixed industry, which is the demand source; and (c) governmental intervention in cement price determination; etc.; and (d) the instant collaborative act should be deemed as “an act of heavy importance;” and even if it is deemed as a serious violation of domestic affairs, it is reasonable to apply a imposition rate lower than 5% lower than that of 5

C. Aggravation of penalty surcharge on the ground of obstruction of investigation by the plaintiff

1) According to Articles 2 and 4 of the Framework Act on Administrative Regulation and Article 2(1)2 of the Enforcement Decree of the same Act, the defendant must set the criteria for calculating, adding, and reducing penalty surcharges within the scope of delegation specifically determined by law, and the public notice of penalty surcharges should be based on the Fair Trade Act, and the contents thereof should be clearly and clearly prescribed. The act of obstruction of investigation is the act of the violating enterpriser who makes it difficult to obtain evidentiary materials, and there is no relation with the inherent contents and degree of the violation. Thus, the provision of increase in the obstruction of investigation of penalty surcharges is a regulation without any grounds under the Fair Trade Act, and thus has no effect.

2) Even if the aggravated provision on domestic obstruction of investigation is valid, the aggravated provision on obstruction of investigation shall be interpreted to apply only to cases where the investigation by the defendant is practically obstructed due to the act of concealing data, etc. by strictly interpreting the language and text thereof, which is, where the defendant's investigation is conducted, that is, where the result of interference occurs. The act of the plaintiff's employees applying aggravated provision on obstruction of investigation is not only contingent but also there was no interference with the defendant's investigation. Accordingly, the aggravated penalty on the ground of obstruction of investigation does not coincide with the purport of relevant

3) Although the illegality of one day is so far as it is so impossible to compare between the act of obstruction of investigation of one day and the act of the plaintiff, the defendant applied the 10% increase rate to one day, while the defendant applied the 20% increase rate to the plaintiff who has no illegality or significantly minor illegality, while the defendant's precedent only imposed a fine for negligence even when the act of obstruction of investigation which is more unlawful than the plaintiff's act was committed, and there are cases such as Ebeb Market and Es&C which do not apply the aggravated provision on obstruction of investigation. Thus, the defendant aggravated the 20% increase of the first adjustment standard on the ground of obstruction of investigation of the plaintiff by the defendant

(d) Illegality for which the Government's administrative guidance is not recognized as a cause for reduction of penalty surcharge.

In this case, the government actively participated in the two times price decision process and participated in the organization of the three-party consultative body. Considering these circumstances, the government's involvement in the collaborative act should be considered as reduction factors of penalty surcharge, but the defendant does not reflect the administrative guidance of the government at all as reduction factors of penalty surcharge. This is against the defendant's public notice of penalty surcharge IV.3(c)(4) and the defendant's review guidelines on administrative guidance, and also violates the principle of proportionality. In light of the defendant's precedent that reduced penalty surcharge considering the government's involvement in the collaborative act, such as the case of two city telephone service providers, 14 life insurance companies and 10 accident insurance companies, the principle of equity is also violated.

(e)the deviation from and abuse of discretionary authority at the final imposition of penalties;

1) According to the Plaintiff’s audit report in 2015, the Plaintiff’s cash and cash assets are merely KRW 70,300,000 and even if short-term financial assets are combined, KRW 1.64,00,000,000,000,000, and the Plaintiff’s net paid debt in 2015 reaches KRW 623.23%, and the paid-in rate is KRW 32.23%. The Plaintiff’s cumulative profit and loss from 2006 to 2015 is KRW 87.2 billion, and the Defendant did not fully consider the Plaintiff’s poor financial situation and real ability to bear.

2) The Defendant did not fully consider the difficulty of cement industry.

3. Relevant statutes;

Attached Form 2 shall be as listed in attached Table 2.

4. Judgment on the plaintiff's assertion

A. Defendant’s discretionary power over imposition of penalty surcharges

When the Defendant imposes penalty surcharges on a violation of the Fair Trade Act and imposes penalty surcharges, it is discretionary action to determine the specific amount of penalty surcharges within a certain extent prescribed by the Fair Trade Act and the Enforcement Decree thereof. However, if there are grounds such as misunderstanding of facts constituting the basis for the imposition of penalty surcharges or violating the principle of proportionality and equality in exercising such discretion, it may be deemed illegal as a deviation or abuse of discretionary power (see Supreme Court Decision 2012Du1773, Nov. 28, 2013).

B. Determination of illegality in calculating the relevant sales amount

1) Relevant regulations and legal principles

A) According to Article 22 of the Fair Trade Act, Articles 9(1) and 61(1) [Attachment 2] of the Enforcement Decree of the same Act, the Defendant may impose upon an enterpriser who has engaged in unfair collaborative acts a penalty surcharge calculated based on the sales of related goods or services sold in a particular business area during the period of violation. Here, “sales” is determined based on the enterpriser’s accounting data, etc. referring to the business operator’s accounting data, but the scope of each act is individually and specifically determined

B) The scope of related goods or services, which are the premise for calculating the amount of sales, should be determined individually and specifically by taking into account the contents of the agreement among the enterprisers engaged in the unfair collaborative act, the kind and nature of the goods or services that are directly or indirectly affected by the unfair collaborative act, their use and alternative possibility, transaction area, transaction counterpart, transaction stage, etc. (see Supreme Court Decision 2013Du126, May 27, 2016, etc.).

2) Determination on the assertion on the portion of cement supplied to an affiliate company

The above relevant provisions and legal principles as well as Eul are acknowledged by the overall purport of the statements and arguments in the evidence Nos. 2, 4, 6, 8, 10, 13, 16, 18 through 26, 28, 31, 33 through 35, 38, 43 and 43, and evidence Nos. 39-1, 2, 40, and 45, each of the evidence Nos. 40 and 45, and the whole arguments. In other words, the plaintiff and 3 subsidiaries were separate companies with independent legal personality and did not exclude the sales volume of the plaintiff et al. in calculating six cement shipping volume of the plaintiff et al. from the market share agreement. The part of the sales volume of the plaintiff's affiliates is included in the market share agreement of this case. The plaintiff's transactions with its affiliates are sold at the market price at the market price of this case, which is affected by the price agreement between the plaintiff and its affiliates. The plaintiff's allegation that cement trading between the plaintiff and its affiliates constitutes a cement sales related to 3 category 1.

3) Determination as to the Plaintiff’s assertion on the part corresponding to the transportation cost out of cement sales

In full view of the following circumstances acknowledged by the aforementioned relevant provisions and legal principles and the evidence presented earlier, the Plaintiff’s assertion that, in the case of arrival, cement transport costs should be excluded from the relevant sales cannot be accepted.

A) As seen earlier, the related products under the agreement on the market share of this case are Class 1 cement, slot cement, and cement, which constitute the relevant sales in this case. The scope of sales amount of Class 1 cement, etc., which constitute the relevant sales in this case, should be individually and specifically determined by referring to the accounting data of business operators. The Plaintiff issued a tax invoice for the sales amount of Class 1 cement, etc. in the transaction at the arrival of the Plaintiff, as well as accounting of transportation expenses, including transportation expenses, as sales amount, in the transaction at the arrival of the Plaintiff.

B) In the case of the instant price agreement, the matters agreed by six companies, including the Plaintiff, appear to be the selling price of Class 1 cement on the basis of the arrival level, and it is reasonable to view that the transportation cost is the object of the agreement, which was affected by the instant price agreement.

C) Ordinaryly, transportation is required in the course of delivering goods to consumers. Therefore, in order to deem that such transportation costs constitute related goods or sales separate from a specific sales of goods, transportation services of the goods may be deemed entirely separate from the sales of goods in light of the specific composition of sales proceeds of the goods, recognition of the parties to the transaction, or transaction practices. However, it does not appear that it is a trade practice in which consumers directly transport cement in the sales market of the instant first cement, etc.

D) On the ground that there are cases of a method of transaction, it cannot be deemed that the general cost of sales and transportation should be naturally excluded from the relevant sales, and it is not necessary to account separately from the sales proceeds of Class 1 cement, etc.

E) In a case where the Plaintiff fully or partially borne transportation costs or the demand supplier fully or partially paid the Plaintiff the sales proceeds of Class 1 cement, etc., including transportation costs, the transportation cost portion constitutes the sales cost with accounting data, and there is no reason to exclude the sales proceeds of Class 1 cement, etc., the relevant goods from sales proceeds

C. Determination on the illegality of calculation of the imposition standard rate

1) Whether a collaborative act restricts competition provided for in Article 19(1) of the Fair Trade Act should be determined individually by examining whether the collaborative act affects or is likely to affect the determination of price, quantity, quality, and other terms and conditions of trading by taking into account various circumstances, such as characteristics of the relevant product, consumers’ standard for choosing products, impact of the relevant act on the market and enterprisers on the competition. Meanwhile, enterprisers’ joint determination or alteration of price causes or is likely to affect the free price determination to a certain extent according to their intent by reducing price competition within the scope of price competition, and such collaborative act is deemed unfair, barring any special circumstances (see Supreme Court Decision 2009Du7912, Apr. 14, 201).

2) In addition, the degree of gravity of a violation caused by an unfair collaborative act shall be determined by comprehensively taking into account the degree of undermining competition order caused by the violation, the influence and ripple effect on the market, the degree of damage inflicted upon the relevant consumers and enterprisers, and whether to acquire unjust enrichment (see Supreme Court Decision 2009Du15005, Sept. 8, 201).

3) The following circumstances acknowledged as above, namely, the instant collaborative act aims to determine, maintain, or change the price, and constitutes light collaborative act which generates competition-restricting effect; six companies, including the Plaintiff, etc., conducted measures such as checking the amount of cement shipment, checking the status of payment of transportation subsidy in excess of or in short of the market share, preparing a standard rate table and checking the authenticity of the shipping volume statistics, and conducting the price agreement in this case; it is difficult to see that the benefits acquired by the Plaintiff were insignificant due to the instant collaborative act; the Defendant may be deemed as the background of the instant collaborative act; the Defendant may be deemed as having determined the standard rate of imposition, considering that it is difficult to view that it would have a significant impact on the unfair profit and demand situation arising from the instant collaborative act; and in light of the above legal principles, the government, as seen below, presented a price-saving proposal after coping with the instant collaborative act after the instant collaborative act. In light of the above, it does not seem to have any ground to deem that the Defendant’s application of the above standard of imposition by the Plaintiff’s discretionary authority is unlawful.

D. Determination on the assertion regarding obstruction of investigation

1) Determination on the assertion of violation of the Framework Act on Administrative Regulation

Article 22, Article 55-3 (1) of the Fair Trade Act, Article 61 (1) and 61 (2) [Attachment Table 2] b. (c) of the Enforcement Decree of the Public Trade Act provide that the upper limit of the calculation of the penalty surcharge, which is 10% of the relevant sales, shall not be limited to the grounds to be considered in the calculation of the penalty surcharge, and it shall be comprehensively defined not to limit the grounds to be considered in the calculation of the penalty surcharge. This is reasonable to deem that the Defendant, when calculating the penalty surcharge, in calculating the penalty surcharge within the upper limit of Article 22 of the Fair Trade Act, has provided the Defendant with discretion to add considerations suitable for accomplishing the purpose and purpose of the penalty surcharge system under the Fair Trade Act in the process of securing more professional and efficient enforcement of the law by coping with complicated and diverse types of fair trade cases. Accordingly, even if the Defendant determined the standard by the public notice on the imposition of the penalty surcharge within the scope of the upper limit of the penalty surcharge, the effect of the public notice on the increase of the penalty surcharge cannot be deemed null and void.

2) Whether a penalty surcharge constitutes an obstruction to inspection

A) The penalty surcharge IV.3.2.(4) only provides that the penalty surcharge may be aggravated differently depending on the mode of conduct, such as obstruction of investigation, etc., "in a case where an offender or an executive officer or employee belonging to him/her refuses, interferes with, or evades an investigation into a violation," and does not require the result of obstruction of investigation in relation to the recognition of obstruction of investigation, etc. as a ground for aggravation of penalty surcharge. Thus, it is difficult to accept the Plaintiff's assertion that the application of the penalty surcharge notice requires the result of obstruction of investigation, etc. other than obstruction of investigation, etc., and it is reasonable to view that

B) Circumstances acknowledged by the Defendant’s investigating officer on July 10, 2014 as follows: (i) the Plaintiff’s investigating official entered the Plaintiff’s office to conduct a field investigation; (ii) Nonparty 1 instructed Nonparty 2, his subordinate employee, to move the documents on his book to Nonparty 2; (iii) Nonparty 2 was exposed to Nonparty 1’s investigating official during his moving the documents on his book to the conference room of other departments; (iii) Nonparty 3’s employee rejected the Plaintiff’s request for inspection on the same day, including the current status of sales of cement cement against ready-mixed; and (iv) Nonparty 2’s request for inspection on the same day, which was stored by Nonparty 4, the Defendant’s investigating official, and Nonparty 4, the Defendant’s request for inspection on his file again, was rejected; and (v) Nonparty 4, the Defendant’s investigating official, on the same day, was released to Nonparty 5, Nonparty 1, and Nonparty 6, and the Plaintiff’s request for inspection on the digital file 4, respectively.

3) Whether the principle of equity is violated

A) According to Gap evidence No. 1, the defendant's investigative officer's entry into a single office for a field investigation, as to the concealment of materials in a female toilet and underground parking lot, the defendant increased 10% of the first adjustment calculation standard for the same day and increased 20% for the plaintiff as seen earlier. Thus, the defendant's application of a higher increase rate to the plaintiff is not unlawful.

B) The case cited by the Plaintiff appears to be different from this case in specific facts, even though the Defendant committed an act of interference with investigation that is more unlawful than the Plaintiff’s act, and the case cited by the Plaintiff appears to be different from this case. It is difficult to recognize that the Defendant’s decision alone did not apply the aggravated provision for interference with investigation to the Defendant, and it is insufficient to recognize that the Defendant arbitrarily treated the business operator who committed an act identical or similar to the instant collaborative act and the Plaintiff differently without reasonable grounds.

4) Therefore, we cannot accept all the Plaintiff’s above assertion.

E. Determination as to the assertion on governmental administrative guidance

According to the purport of Eul evidence No. 44 and the whole arguments, the government's price saving proposal can be acknowledged that the government's price saving measure against six cement industries, including the plaintiff, etc., discontinued operations from February 22, 2012 to suspend operations, and the government presented the proposal to raise KRW 73,600 to the cement industry and ready-mixed industries for resolution of disputes between the industry. According to this, the government's measures are only follow-up measures after six companies such as the plaintiff, etc. were jointly conducted, and this is deemed to be a violation of the government's policies (including administrative guidance which has binding power). Thus, it cannot be seen that the defendant did not reduce the government's measures against the plaintiff as illegal. In addition, the court held that there is no reasonable difference between the plaintiff's administrative decision-making process and the defendant's decision-making practice in this case, and there is no reason to acknowledge that the defendant's measures were identical or different from the above administrative decision-making practice of the plaintiff.

F. Determination on the assertion on mitigation of imposition penalty surcharges

In full view of the following circumstances: (a) the Plaintiff’s net income for the year 2014 and 2015 was black for the Plaintiff; (b) the Plaintiff’s sales revenue for the year 2015 was KRW 1.4,16.1 billion; and (c) the earned surplus is KRW 1,61.2 billion; and (d) the Defendant’s reflects the difficult circumstances in the cement industry at the calculation stage of the standard imposition rate, as seen earlier, it is difficult to deem that the Defendant did not reflect the same as the Plaintiff’s assertion in the final penalty surcharge determination phase. This part of the Plaintiff’s assertion is without merit.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

(attached Form omitted)

Judges Yoon Sung-won (Presiding Judge)

Note 1) The term salutism means the character of light reactioning with water.

2) Class 1 cement is included in Class 1 cement. Class 1 cement is divided into Class 1 cement (class cement is a cement of a non-packaged, which is the concept of packing cement) and Class 1 cement.

3) It means a type of cement which, in order to prevent an importation of first-class cement necessary for a production of slot cement, is supplied low-value of cement products at a price similar to that of the import price for cement cement manufacturing in a technical slot cement manufacturing.

Note 4) The formula for calculation in accordance with the provisions of Section IV.3.3(a) and (b)(4) proviso of penalty surcharge notice: [The calculation guidelines for the first adjustment 67,376,739,00 won x 30%) + the fine for negligence 100,000] + the standard for the first adjustment calculation = 67,376,739,000 won = 87,489,760,000 won.

Note 5) The Plaintiff is responsible for transportation and includes sales and transportation expenses at the selling price.

Note 6) Granting a certain transport expense subsidy to the demanding Party instead of taking charge of the carriage.

7) The ratio of current assets divided into current liabilities.