[1] The legal nature of the Fair Trade Commission's imposition of penalty surcharge against the violator of the law (=judicial act)

[2] The case holding that the imposition of a penalty surcharge is an abuse of discretion on the ground that there is an error in fact-finding, which forms the basis for exercising discretion to impose a penalty surcharge, where the Fair Trade Commission includes a period not for a violation, but for the calculation of a penalty surcharge for an unfair collaborative act, and the sales

[3] Whether a new disposition can be taken on the ground that new materials, which form the basis of calculation of a penalty surcharge, have been presented later (negative)

[1] In full view of each provision of Articles 6, 17, 22, 24-2, 28, 31-2, and 34-2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 1999), the Fair Trade Commission has discretion to determine whether to impose a penalty surcharge for a violation of the Act, and if a penalty surcharge is imposed, the amount of the penalty surcharge should be determined within a certain scope. Thus, the imposition of a penalty surcharge against a violator of the Act by the Fair Trade Commission is a discretionary act. However, if there are grounds such as misconception of facts and violation of the principle of proportionality and equality in the exercise of discretion to impose a penalty surcharge, it is unlawful as a deviation or abuse of discretionary power.

[2] The case holding that the imposition of a penalty surcharge is an abuse of discretion on the ground that there is an error in fact-finding, which serves as the basis for exercising discretion to impose a penalty surcharge, where the Fair Trade Commission includes a period not for a violation, but for the calculation of a penalty surcharge for an unfair collaborative act.

[3] As a matter of principle, the penalty surcharge is a monetary sanction imposed for the purpose of depriving a person who violates the obligations under the Administrative Act of the economic interest gained by the violation in question, so it should be determined on the basis of the facts confirmed by the imposing authority at the time of the disposition, within the scope prescribed by the Act, and it is not possible to impose a new tax disposition on the ground that new data, which served as the basis for calculation of the charge,

[1] Articles 1, 6, 17, 22, 24-2, 28, 31-2, 34-2, and 55-3 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813, Feb. 5, 1999); Article 27 of the Administrative Litigation Act / [2] Articles 19, 22, and 55-3 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813, Feb. 5, 199); Article 27 of the Administrative Litigation Act / [3] Articles 19, 22, and 55-3 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813, Feb. 5, 199)

[1] Supreme Court Decision 200Du6206 decided Feb. 9, 2001 (Gong2001Sang, 654) / [3] Supreme Court Decision 99Du1571 decided May 28, 199 (Gong199Ha, 1296)

Han Pul Co., Ltd. (Attorney Choi Fixed-soo et al., Counsel for the defendant-appellant)

Fair Trade Commission (Law Firm Maumbae, Attorneys Inducement et al., Counsel for the defendant-appellant)

Seoul High Court Decision 98Nu10839 delivered on June 20, 2000

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

1. In full view of each provision of Articles 6, 17, 22, 24-2, 28, 31-2, and 34-2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 1999), the Fair Trade Commission has discretion to determine whether to impose a penalty surcharge for a violation of the Act, and if a penalty surcharge is imposed, the amount of a penalty surcharge should be determined within a certain scope. Thus, the imposition of a penalty surcharge against a violator of the Act by the Fair Trade Commission is a discretionary act, but if there are grounds such as misconception of facts and violation of the principle of proportionality and equality in the exercise of discretion to impose a penalty surcharge, it is illegal as a deviation or abuse of discretionary power.

2. However, according to the records, the part of the plaintiff's act recognized as an unfair collaborative act is limited to the second and third increase portion of the decision of the court below, and even if related goods are limited to the IM-sing cremation, the defendant calculated the penalty within the limit of annual average sales amount, based on the sales amount of the goods related to the violation during the violation period, and calculated the penalty within the limit of annual average sales amount, including the period of the first reduction and the first increase in the decision of the court below, but also based on the sales amount of the entire cremation goods other than the IM-sing cremation cremation paper as well as the first increase in the relevant goods. Thus, if there are circumstances, the order to pay the penalty surcharge of this case is erroneous in fact-finding which is the basis of the exercise of discretion to impose the penalty surcharge, and therefore, the order to pay

In addition, as a matter of principle, since penalty surcharges are monetary sanctions imposed for the purpose of depriving a person who violates the obligations under the Administrative Act of the economic interest gained from the violation in question, it should be determined on the basis of the facts confirmed by the imposing authority at the time of the disposition within the scope prescribed by the Act, and it is not possible to impose a new disposition on the ground that there has been new data that served as the basis for calculating charges later (see Supreme Court Decision 99Du1571, May 28, 1999). Nevertheless, it is clear that the defendant made a disposition to increase the amount of penalty surcharges on May 27, 1998, and such disposition is also unlawful.

Thus, since the order to pay the penalty surcharge of this case and the disposition to increase the penalty surcharge of this case can no longer be maintained, the judgment of the court below that revoked

3. Therefore, the appeal is dismissed and all 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 Jae- Jae (Presiding Justice)