[1] Whether a request for revocation of a disposition of reduction is legitimate in cases where an administrative agency imposed a penalty surcharge upon a person who was subject to a disposition of reduction (negative)

[2] The meaning of "in cases of concluding a bidding contract" under Article 22 of the former Monopoly Regulation and Fair Trade Act and Article 61 (1) [Attachment 2] subparagraph 6 of the Enforcement Decree of the same Act, and the criteria for imposing penalty surcharges on other business operators who participated in bidding collusion in addition to the pertinent business operators who concluded a bidding contract

[3] Whether the Fair Trade Commission’s calculation of a penalty surcharge in accordance with the guidelines for calculation and imposition of a penalty surcharge, which is an internal administrative rule for its internal affairs, is unlawful in itself (negative)

[4] The legal nature of the imposition of a penalty surcharge against a violator of the Monopoly Regulation and Fair Trade Act (=the discretionary act)

[1] Articles 12 and 19 of the Administrative Litigation Act / [2] Article 2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004), Article 61 (1) [Attachment 2] subparagraph 6 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 17564 of Mar. 30, 2002) / [3] Article 2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004), Article 27 of the Administrative Litigation Act / [4] Articles 6, 17, 22, 24-2, 31-2 and 34-2 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004), Article 27 of the Administrative Litigation Act

[2] Supreme Court Decision 2002Du5627 Decided November 12, 2004, Supreme Court Decision 2004Du3045 Decided December 7, 2006 (Gong2007Sang, 135) / [3] Supreme Court Decision 2000Du1713 Decided September 24, 2002 (Gong2002Ha, 2574), Supreme Court Decision 2002Du5627 Decided November 12, 2004 / [4] Supreme Court Decision 200Du1713 Decided September 24, 2002 (Gong202Ha, 2574), Supreme Court Decision 204Du12315 Decided May 12, 206

Emphan City Co., Ltd. (Attorneys Park Sung-sung et al., Counsel for the plaintiff-appellant)

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

Supreme Court Decision 2002Du5627 Delivered on November 12, 2004

Seoul High Court Decision 2005Nu489 delivered on January 12, 2006

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

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

1. Regarding ground of appeal No. 1

If there is a defect in the administrative disposition, the disposition agency which issued the administrative disposition shall be able to cancel or change it on its own without any other legal basis (see, e.g., Supreme Court Decisions 85Nu664, Feb. 25, 1986; 2003Du4669, May 25, 2006). In imposing the penalty surcharge, where the administrative agency imposed the person liable for payment and then reduces the amount of the penalty surcharge on the grounds of the defect in the disposition, the disposition shall affect only the portion of the reduced penalty surcharge, as it does not have the legal effect on the part of the reduced penalty surcharge, and it does not have any legal effect on the original disposition, but shall have any legal effect on the part of the reduced penalty surcharge, as it does have a favorable result on the part of the person liable for payment as a partial cancellation of the penalty surcharge. Accordingly, the request for revocation on the reduced portion by the disposition is already extinguished, and it shall be deemed unlawful as there is no benefit in the lawsuit.

In this regard, the court below is just in holding that the lawsuit in excess of the imposition of the penalty surcharge of KRW 14,369,000,000, which is the part of the imposition of the penalty surcharge of KRW 17,820,000, which is the part of the first imposition of the penalty surcharge of KRW 14,369,000, which is the remaining part of the imposition of the penalty surcharge of KRW 17,820,

2. Regarding ground of appeal No. 2

According to Article 22 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315, Dec. 31, 2004; hereinafter referred to as the "Act"), Article 61(1) [Attachment 2] [Attachment 6] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 17564, Mar. 30, 2002; hereinafter referred to as the "Enforcement Decree of the Act"), the criteria for imposition of penalty surcharges shall be prescribed as "within 5/100 of contract amount if a bidding contract is concluded, and one billion won if a bidding contract is not concluded," and "in the event of concluding a bidding contract, the criteria for imposition of penalty surcharges shall be prescribed as "the amount of penalty surcharges for the contract amount" as well as "the criteria for imposition of penalty surcharges for other enterprisers who participated in the bidding collusion," as stated in the main sentence of Article 61(1) [Attachment 2] 6 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 20165, Dec. 26, 27, 20064, etc.

In addition, the defendant's calculation method of penalty surcharges and guidelines for imposition (amended by April 29, 197) are the defendant's internal administrative rules that set the criteria for penalty surcharges within the amount prescribed in Article 22 of the Act (see, e.g., Supreme Court Decisions 2000Du1713, Sept. 24, 2002; 2002Du5627, Nov. 12, 2004). In a specific case, unless the result of the application of the above criteria does not go against the principle of proportionality and equality, the imposition of penalty surcharges by itself cannot be deemed unlawful.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the imposition standard of penalty surcharge.

3. As to the grounds of appeal Nos. 3 through 5

In full view of the provisions of Articles 6, 17, 22, 24-2, 28, 31-2, and 34-2 of the Act, the Fair Trade Commission has discretion to determine whether to impose a penalty surcharge on a violation of the Act, and if a penalty surcharge is to be imposed, the amount of the penalty surcharge is to be determined within a specific scope provided for in the Act and the Enforcement Decree of the Act. Thus, the Fair Trade Commission's imposition of a penalty surcharge on a violator of the Act is a discretionary act. However, if there are grounds such as misconceptions of the facts that form the basis for imposing a penalty surcharge in exercising such discretion, or violation of the principle of proportionality and equality, it is illegal as a deviation or abuse of discretionary power (see, e.g., Supreme Court Decisions 200Du1713, Sept. 24, 200; 204Du12315, May 12, 2006).

In light of the above legal principles and the records, the defendant not only imposed a penalty surcharge within the scope prescribed by the law and the Enforcement Decree of the Act, and even when considering the circumstances that the plaintiff is in the grounds of appeal, the defendant cannot be deemed to have abused or abused discretion by failing to take into account the amount of profit acquired in the part of the plaintiff's participation in bidding collusion as well as the purport of the judgment of remand in determining whether to impose a penalty surcharge and the amount thereof.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to deviation and abuse of discretion like the grounds of appeal, and exemption of penalty surcharge in cooperation with the plaintiff.

4. Regarding ground of appeal No. 6

Any objection to a judgment on the costs of lawsuit shall be permitted only when all or part of the final appeal on the merits is justified, and it shall not be permitted if the final appeal on the merits is groundless (see Supreme Court Decisions 98Da22048, Sept. 8, 1998; 2004Da71522, 71539, Mar. 24, 2005; 2004Da7152, 71539, etc.). Unless the final appeal on the merits of this case is justified, the allegation in the grounds of appeal that the judgment on the costs of lawsuit by the court below is unlawful is also unacceptable.

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)