Plaintiff (Attorney Choi Jong-soo et al., Counsel for the plaintiff-appellant)

Fair Trade Commission

December 15, 2005

1. The plaintiff's primary and conjunctive claims are all dismissed.

2. Litigation costs shall be borne by the plaintiff.

On December 29, 2004, it is confirmed that the Defendant’s order of penalty surcharge payment as stated in the attached Table 1 against the Plaintiff on December 29, 2004 is invalid.

Preliminaryly, the defendant's order to pay the penalty surcharge stated in the attached Form 1 against the plaintiff on December 29, 2004 shall be revoked.

1. Basic facts

A. Es cases including the Plaintiff, Lkknex Oil Co., Ltd., Hyundai oil Co., Ltd., Hyundai oil Co., Ltd., Ltd. (hereinafter referred to as “SK”), Lkkkknex Oil Co., Ltd., Hyundai oil Co., Ltd., Ltd., “real oil refinery,” and Incheon Oil Co., Ltd., Ltd., and the five companies including the Plaintiff, including the Plaintiff, collectively referred to as “five companies including the Plaintiff, etc.,” are business operators under Article 2 subparag. 1 of the Monopoly Regulation and Fair Trade Act (hereinafter “Act”), which engage in petroleum refining business pursuant to Article 4 of the Petroleum Business Act.

B. Five companies including the Plaintiff, etc. participated in the tender for the purchase of military oil in 198, 1999, and 2000, the bid was awarded in advance as agreed upon by specific agreements on the scheduled bid price by type, the bid price by the winning company, the bid price by the winning company, and the estimated bid price by the winning company, the bid price by desired quantity, the bid volume by desired quantity, etc.

C. The defendant deemed that the above acts of five companies, including the plaintiff, etc. constitute an unfair collaborative act under Article 19 (1) 1 of the Act, and thus ordered corrective orders, publication of facts of violation, and payment of penalty surcharges under Article 200-158 of the Act on October 17, 2000. Among them, five companies, including the plaintiff, filed an objection against the above order to pay the penalty surcharges. The defendant calculated the amount of penalty surcharges by taking account of the following factors: (a) on February 28, 2001, by ruling 201-010, within the scope of the standard of imposition under the Act, the amount of penalty surcharges of 30% for the investigation; (b) the size and degree of profits acquired from the violation; (c) the amount of penalty surcharges of 30% for the investigation; and (d) the amount of penalty surcharges of 200% for the total contract amount of 712,89,000 won and 208% for the violation of the Act on the basis of 300%.

D. Accordingly, the Plaintiff filed an administrative litigation seeking the revocation of the above order to pay a penalty surcharge under 201Nu4803, which was ruled against the Plaintiff, and the Plaintiff appealed to the Supreme Court Decision 2002Du5627 Decided November 12, 2004. The Supreme Court rendered an appeal by the Plaintiff on November 12, 2004, that “the amount of the penalty surcharge in this case is calculated within the scope not exceeding the upper limit pursuant to Article 22 of the Act and Article 9(1) of the Enforcement Decree of the Act, or the proviso to [Attachment 2] 6 of the Enforcement Decree of the Act, even if the amount of the penalty surcharge in this case is calculated within the scope not exceeding the upper limit, the amount of the penalty surcharge in this case’s tendering consultation differs not only from the content and degree of the violation, but also from the profits acquired by the Plaintiff due to the violation, and thus, the amount of the penalty surcharge in this case’s tendering procedure that the Plaintiff concluded as the participant constitutes an excessive imposition standard for the Plaintiff, without considering the above part of the tender agreement.

E. Accordingly, the defendant applied the imposition rate of 2.5% as originally to the part of the contract that the plaintiff entered into as the actual successful bidder by the decision No. 2004-385 of December 29, 2004, which was pending in the lawsuit of this court 2005Nu489, which is the above reversal and transmission case, to the part that the plaintiff entered into as the actual successful bidder, and applied the imposition rate of 17,820,000 of the penalty surcharge under the disposition of this case by applying the imposition rate of 1.9% in consideration of the purport of the above decision of the Supreme Court with regard to the part that did not enter into the contract and participated simply in the contract, 3,451,000,000 of the penalty surcharge of this case, which is KRW 14,369,00,000,000 of the disposition of this case (hereinafter referred to as "the reduction order of penalty surcharge of this case").

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 3; Gap evidence Nos. 1, 2, 4, and 5; the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The parties' assertion

(1) The Plaintiff asserts that the reduction of the penalty surcharge itself is subject to appeal litigation, rather than the part of the order to pay a penalty surcharge of KRW 14,369,00,000, which has been partially cancelled and left as above. In addition, in order to ensure that the parties who can be damaged due to the corrective measures or order to pay a penalty surcharge are present at the deliberations of the Fair Trade Commission and exercise their right to defense against the examiner's results of examination, the examination procedure is appropriate, and that the Fair Trade Commission provides various procedural provisions in the Monopoly Regulation and Fair Trade Act (hereinafter "the Act") and the "Rules on the Operation and Procedure, etc. of the Meeting of the Fair Trade Commission" (hereinafter "Rules of the Procedure") to allow more specific identification of facts through legitimate review procedures, and that the Defendant applied the reduction of the penalty surcharge in this case to the part where the contract in this case was executed by the Plaintiff, which is one of the parties to whom the contract in this case was imposed, without having been presented, more than half of the total amount of the penalty surcharge in this case.

(2) On this issue, the Defendant asserts that the subject of appeal is the remaining part of the disposition of imposition of the first penalty surcharge, which is not revoked by a partial revocation, and that the disposition of reduction itself is not the subject of appeal litigation, but the subject of appeal lawsuit, and that the Plaintiff filed a primary and preliminary claim in the instant case, which is unlawful.

B. Determination

On the other hand, a partial disposition of reducing the number of penalty surcharges is not the original disposition of imposing the penalty surcharge and the separate disposition of imposing the penalty surcharge, but the actual substance is changed not the original disposition of imposing the penalty surcharge but the change of the disposition of imposing the penalty surcharge, which leads to the favorable effect on the person liable for imposing the penalty surcharge, so the remaining part of the disposition of imposing the penalty surcharge is illegal despite the partial disposition of imposing the initial disposition of imposing the penalty surcharge, and the object of appeal litigation is the remaining part of the disposition of imposing the penalty surcharge which is not revoked, and the reduction of the penalty surcharge itself is not the object of appeal litigation. This legal principle is the same in the case where there is an illegal cause in the disposition of imposing the initial disposition of imposing the penalty surcharge and there are no special circumstances that need to recognize a separate means of appeal (see, e.g., Supreme Court Decisions 95Nu6328, Jul. 30, 1996; 98Du3211, May 26, 1998). Thus, the plaintiff's claim of this case is unlawful.

3. Conclusion

Therefore, the plaintiff's main and ancillary claims of this case are unlawful and all of them are dismissed. It is so decided as per Disposition.

[Attachment Omission]

Judges Hong Sung-hee (Presiding Judge)