2011Du31413. Action of revocation of penalty surcharge

Aion Cable Co., Ltd.

Fair Trade Commission

Seoul High Court Decision 2011Nu18269 Decided November 10, 2011

October 11, 2013

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

In full view of the provisions of Articles 6, 17, 22, 24-2, 31-2, and 34-2 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”), the Fair Trade Commission has discretion on whether to impose a penalty surcharge on a violation of the Act, and when imposing a penalty surcharge, the amount of the penalty surcharge is to be determined specifically within a certain scope prescribed by the Act and the Enforcement Decree. Thus, the Fair Trade Commission’s imposition of a penalty surcharge on a violator of the Act constitutes an act of discretionary discretion: Provided, That if there are grounds such as misunderstanding of the fact that serves as the basis for imposing a penalty surcharge in the exercise of discretionary power, or violating the principle of proportionality and equality, such fact is illegal as a deviation or abuse of discretionary authority (see, e.g., Supreme Court Decisions 200Du6121, May 28, 2002; 2006Du675, Nov. 13, 2008).

In full view of adopted evidence, the court below held that the defendant ordered the payment of the penalty surcharge of this case on the ground that the plaintiff jointly prepared the base price table with LSS, KON Korea Co., Ltd., and agreed on the price discount rate, and that the defendant violated Article 19 (1) 1 of the Act, and that the defendant did not follow the previous public notice of the Fair Trade Commission's order of imposition of the penalty surcharge of this case on December 2, 2007 (No. 2007-15, hereinafter referred to as "public notice of the Fair Trade Commission's imposition of the penalty surcharge of this case") before the enforcement date of the "public notice of the imposition of the penalty surcharge of this case" (No. 2007-15, hereinafter referred to as the "public notice of the imposition of the penalty surcharge of this case on December 31, 2007"), and it did not follow the previous public notice of the Fair Trade Commission's order of imposition of the penalty surcharge of this case on the grounds that it violated Article 205.

Examining the reasoning of the judgment below in light of the above legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the legality of the order to pay penalty surcharges, the legality of administration, the principle of legal superiority, and the principle of equality.

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 Min Il-young

Justices Lee In-bok

Justices Park Poe-young

Justices Kim Shin