[1] Whether the Fair Trade Commission may prohibit business operators who committed unfair collaborative acts through the exchange of information to exchange information as corrective measures (affirmative), and the method of determining whether an order to prohibit the exchange of information is permitted as “necessary measures” under Article 21 of the Monopoly Regulation and Fair Trade Act

[2] The case holding that an order issued by the Fair Trade Commission to prohibit the exchange of information to manufacturers of smuggling who exchange information from time to time on the price, sale volume or production constitutes "measures necessary for correction" under Article 21 of the Monopoly Regulation and Fair Trade Act, and the measures do not violate the principle of clarity and clarity or the principle of proportionality

[3] Requirements to deem that part or whole of the enterprisers participating in an unfair collaborative act has terminated the unfair collaborative act

[1] Article 21 of the Monopoly Regulation and Fair Trade Act / [2] Article 21 of the Monopoly Regulation and Fair Trade Act / [3] Article 19 of the Monopoly Regulation and Fair Trade Act

[1] Supreme Court en banc Decision 2001Du5347 Decided February 20, 2003 (Gong2003Sang, 818) / [3] Supreme Court Decision 2007Du12774 Decided October 23, 2008 (Gong2008Ha, 1607)

Plaintiff 1 and two others (Attorneys Son Ji-yol et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm Rois, Attorneys Gangnam-gu et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Nu23007 decided Dec. 5, 2007

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. All appeals by the Plaintiffs are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

Article 21 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) provides that “When there is an act violating Article 19(1), the Fair Trade Commission may order the enterpriser concerned to discontinue the act, to publish the fact that the enterpriser is ordered to take corrective measures or to take other measures necessary for correction.” The language and text of the above provision, the correction order under the Fair Trade Act should be somewhat modified every specific day, and the corresponding order under the Fair Trade Act should be somewhat vague and abstract, in light of the nature of the order, and the purport of the system of the correction order should be interpreted that the contents of the order of prohibition can only be interpreted as not only to suspend past violations, but also to prohibit repeated acts of the same kind that are likely to be repeated in the near future, and the contents of the order of prohibition should be interpreted as necessary for the exchange of information in consideration of the specific nature of the order of prohibition and exchange of information as well as the contents of the order of prohibition and exchange of information. Therefore, the Fair Trade Act should not be deemed necessary for the purpose of correction and exchange of information.”

According to evidence duly examined by the lower court and the lower court, eight companies including the Plaintiffs committed the instant collaborative act, such as the agreement on the price of smuggling, sales volume, or production volume (hereinafter “information of this case”) by exchanging information about the price of smuggling, sales volume, or production quantity from time to time. The purpose of exchanging the information of this case is to facilitate the collaborative act of this case. The purpose of exchanging the information of this case is to facilitate the collaborative act of this case. The domestic smuggling market is to ensure that the higher three market share of this case is 75% or less, and the difference between products is likely to occur easily. The information of this case was not disclosed to third parties, such as consumers and administrative agencies, and it was regularly exchanged within the company of the subcommittee association only within the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of this case. The information of this case is ordinarily treated as confidential information in terms of the purpose of prohibiting the exchange of information of this case or other specific information concerning the price of this case.

Nevertheless, the lower court, on the premise that the “other measures necessary for correction” under Article 21 of the Fair Trade Act does not include measures beyond the degree of suspension of the act, determined that the instant information exceeded the degree of suspension of the act, and thus, exceeded the reasonable scope of the corrective order, and violated the principle of excessive prohibition. Therefore, the lower court erred by misapprehending the legal doctrine on the corrective order under the Fair Trade Act, thereby adversely affecting the conclusion of the judgment.

2. Regarding the plaintiffs' grounds of appeal

A. Ground of appeal No.1

Examining the reasoning of the judgment below in light of the records, the court below is just in finding facts as stated in its holding and finding that the plaintiffs agreed to jointly restrict the amount of smuggling in 2000 and 2001. The judgment below did not err by misapprehending the legal principles as to unfair collaborative acts, violating the rules of evidence, or failing to exhaust all necessary deliberations, as alleged in the grounds of appeal.

B. Ground of appeal No. 2

The date on which an unfair collaborative act is terminated in cases where an agreement was made on the restriction on the production, delivery, transportation, or transaction of goods under Article 19 (1) 3 of the Fair Trade Act, and the date on which the unfair collaborative act is terminated in accordance with the agreement. Thus, in order for certain enterprisers participating in the agreement to terminate the unfair collaborative act, an act contrary to the agreement should be committed, such as explicitly or implicitly expressing their intent to withdraw from the agreement to other enterprisers, and returning to the level of the production or sale quantity that would have existed without the collusion according to their independent judgment. In order for them to become the termination of the unfair collaborative act with respect to the whole enterprisers who participated in the agreement, there should be circumstances that make it possible for each enterpriser who participated in the agreement to clearly reverse the agreement, and to deem that each enterpriser engaged in the agreement was in violation of the agreement, or that the collusion was de facto reversed through the repetitive production or sale competition, etc. between them (see Supreme Court Decision 207Du1274, Oct. 23, 2008).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning, and determined that since some companies withdrawn from the Kaurel on September 2005, but the market share of the remaining companies, including the plaintiffs, reached 66%, it is difficult to view that the Kaur has collapsed because it did not reach 66%, the plaintiffs complied with the agreed output in 2005, and there is no other evidence to deem that the plaintiffs terminated the implementation act by agreement, the plaintiffs' assertion cannot be viewed as the date on which the unfair collaborative act was terminated in September 2005.

In light of the above legal principles and records, such judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the termination of unfair collaborative acts as alleged in the grounds of appeal.

C. Ground of appeal No. 3

If enterprisers have agreed several meetings over a long-term period, and if the multiple meetings are to carry out the same purpose on the basis of a single intent and have been continuously implemented without any interruption, it is reasonable to view the series of agreements as a whole as one unfair collaborative act, barring any special circumstance (see Supreme Court Decision 2007Du3756, Sept. 25, 2008).

Examining the reasoning of the judgment below in light of the records, the court below acknowledged facts as stated in its holding, and held that each of the quantity agreements and price agreements of this case form one unfair collaborative act as a whole, and that five years have not passed since the end of the unfair collaborative act at the time of the disposition of this case was just in accordance with the above legal principles, and there was no violation of the misapprehension of the legal principles as to Article 49(4) of the Fair Trade Act, as otherwise alleged in the grounds of appeal.

D. Ground of appeal No. 4

Examining the reasoning of the judgment below in light of the records, the court below acknowledged the facts as stated in its holding, and judged that since the defendant committed each of the violation of this case in this case by the plaintiffs, the defendant applied 3.5% to the imposition rate of 3.5% through 5.0% by the public notice (amended by the Fair Trade Commission Notice No. 2004-7, Apr. 1, 2004; hereinafter "previous public notice") on the detailed criteria for the imposition of the penalty surcharge, etc., in light of the fact that the price increase in the price of the smuggling product is significant due to the increase in cost, and the content of the agreement cannot be seen as direct and exclusive area in the market, the above imposition rate is set at 3.5%, and it is reasonable to consider all the circumstances that should be considered in the calculation of the penalty surcharge, and there is no error in the misapprehension of legal principles as to deviation and abuse of discretionary power,

In addition, the Defendant’s application of the imposition rate stipulated in the previous public notice is governed by the transitional provision that “where the Defendant imposes penalty surcharges on the act before the enforcement date of the public notice or on the act for which the state of violation continues even after the enforcement date of the public notice, it shall be governed by the previous public notice” under Article 2 of the Addenda to the Public Notice on the Specific Standards, etc. for Imposition of Penalty Surcharges (amended by the Public Notice of the Fair Trade Commission No. 2005-3 of Apr. 1, 2005). Therefore

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiffs’ appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)