Switzerland Co., Ltd. (Law Firm Panan, Attorneys Hun-hee et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Attorney Lee Young-young, Counsel for defendant-appellant)

June 1, 2017

1. The Defendant’s rejection of an application for reduction or exemption of a penalty surcharge against the Plaintiff as the Decision No. 2016-335, Dec. 6, 2016, is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

[Ground of recognition] Unsatisfy, Gap evidence 1, Gap evidence 9, the purport of the whole pleadings

A. Status of the plaintiff, etc.

The Plaintiff and Ssung Engineering Co., Ltd., Daesung Engineering Co., Ltd., Daesungtech Co., Ltd., Daesungtech Co., Ltd., Seosungtech Co., Ltd., Sho Tech Co., Ltd., Shob Co., Ltd., Cheongyang Korea Co., Ltd., Ltd., Cheongyang Co., Ltd., Ltd., Cheongyang Franchis Co., Ltd., Ltd., Royal Co., Ltd., Ltd., Doyechis Co., Ltd., Ltd., White Franchis Co., Ltd., Ltd., White Franchis Co., Ltd., Ltd., White Franchis Co., Ltd., Ltd., Ltd., Machisco Co., Ltd., Ltd., Ltd., Korea Ltd., Ltd., Ltd., Ltd., Ltd., Ltd., Ltd., hereinafter referred to as “stock Co., Ltd.,” is a business entity engaging in construction business.

(b) Market structure and actual conditions of the Corporation in the year and infash fish farm;

1) The construction of a new construction type of a building where heat source equipment such as various boilers or power generators applies (building, school, officetel, hospital, factory, hotel, etc.) is a construction of a passage through which gas from exhaust of a building, including various boilers or power plant, is externally discharged, and the construction of a new eropic (AIDDUT) is a construction of connecting a passage through which gas from exhaust of an apartment house is discharged externally. The construction of a new eropic with a passage through which the main room or bathing room air is discharged externally. The construction of a new eropic is a major ordering office by a private construction company, and construction companies are ordered to participate in a subcontract and construction of a new eroduc in the year and in the construction of a new eropic.g., a construction company holding a license for a specialized construction business is capable of executing all the two types of construction units, and most construction companies of a new construction company together perform the construction of a new roduc and bid two types depending on the construction type.

2) The tender for the construction project in the year and in the form of emult is divided into individual construction project and annual unit price contract, but most of them are conducted by bidding for individual construction project, and some construction companies are also performing several projects under contract with one company by conducting annual unit price bidding once a year. In the year and in the form of emult construction project tender, the successful bidder will select (minimum bidding method) the company that participated in the tender at the lowest price based on the proposal (design drawings) presented by the construction company.

C. Action by the Plaintiff, etc.

1) From October 6, 2008 to May 12, 2014, the Plaintiff et al. agreed on and implemented the scheduled bid price and bid price while participating in the bidding of the construction project in the year and the construction project in the form of eromot.g. (hereinafter “first collaborative act”). However, upon the Defendant’s on-site investigation on May 13, 2014, the Plaintiff et al. sent to an enterprise, for which the agreement was reached, the Plaintiff et al. suspended bidding through the collaborative act. However, there was a decrease in construction profit due to a normal competitive bidding, and the National Tax Service collected taxes by deeming the collusion agreement as non-income, and thus, the bidding was resumed from the year of the construction project in the Changwon-gu Seoul Special Metropolitan City on October 2, 2014.

2) Ultimately, the Plaintiff et al. agreed with the successful bidder and the bid price through the wire contact and a meeting before the bidding date while participating in the first collaborative act from October 2, 2014 to November 13, 2015 (hereinafter “second collaborative act”), which was ordered by 77 private construction companies, during the total of 797 years and the total of 797 years and the bidding price ordered by the 77th private construction companies (hereinafter “second collaborative act”).

The main contents of the primary and secondary collaborative acts are as follows.

The number of successful bidders (successful bid amount) 66 cases (78,195 million won) 131 cases (18,274 million won) 131 cases (2.18,274 million won) and 21 participants (21 participants 21) in the table classification 1 primary collaborative acts (five (5 companies*) included in the main sentence) from October 6, 2008 to May 12, 2014) 2nd collaborative acts (from October 2, 2014 to November 13, 2015) 66 cases (successful Bidding amount) 131 cases (18,274 million won) * 18 business operators (5 companies) * macro engineering, 00 U.S. franchise, system Burt, hotel hotel, hotel, hotel, etc. at the conference of ○○○, and 100000 won, and 1800000 won, more than 18,000 banking accounts.

(d) Corrective order and penalty surcharge payment order;

1) On December 6, 2016, the Defendant issued a corrective order and a penalty surcharge order to the Plaintiff, etc. on the ground that the instant collaborative act by the Plaintiff, etc. constitutes “an act of determining successful bidders, successful bidders, bid price, bid price, successful bid price or bid price in bidding or auction, or other matters prescribed by Presidential Decree” under Article 19(1)8 of the Fair Trade Act, as shown in attached Table 1, on the ground that the instant collaborative act by the Plaintiff, etc. constitutes “an act of determining successful bidders, successful bidders

2) The Defendant issued an order to pay a penalty surcharge of KRW 2,359,00,000 to the Plaintiff (hereinafter “instant penalty surcharge”). The grounds for calculating the penalty surcharge are as follows.

(1) Basic calculation standards

The basic calculation criteria shall be calculated by multiplying the relevant sales, which is the sum of the contract price (excluding value-added tax) for bidding proposals by the plaintiff et al. participating in the bidding or participating in the bidding, by the base rate for imposition, but for cases for which the plaintiff et al. failed to receive a successful bid by participating in the bidding, it shall be calculated by subtracting 1/2 of the penalty surcharge, and 1/2 of the amount, and 5/2 of the N-2, by subtracting 5 or more of the total amount, pursuant to the provisions of paragraph (1) (e) of the same Article.

Accordingly, the plaintiff's basic calculation criteria are as follows:

(A) The basic calculation criteria for the imposition rate of penalty surcharges (A) related to sales (A) during the period of violation (A) from October 6, 2008 to May 12, 2014 to December 34, 2014; (2), 221, 940, 573 7% 2,395, 535,840 to October 2, 2014; and (3), 7, 916, 38, 2207% 54,147,175

(2) Criteria for calculation

In consideration of the fact that the Plaintiff consistently recognized the fact of the act from the investigation stage to the completion of the deliberation by the Fair Trade Commission, and actively cooperated in the investigation by submitting data or making statements that may help to determine the illegality, the penalty surcharge notice shall be mitigated by 20% of the standards for the calculation of the first adjustment in accordance with the provisions of subparagraph (a).

The base rate for calculating reduction rates for the period of violation of the table (unit: Won and value added tax) contained in the main sentence shall be 1,916,428, 672 through November 13, 2015, 200 △△△△△△△△△§ 443, 443, 317, 740, from October 6, 2008 to May 12, 2014, 2008 to May 12, 2014; 1,916,428, 672 to 13, 205.

(3) Determination of penalty surcharges;

In the above criteria for calculation, 2,359,00,000 won, which is the sum of 1,916,000,000 won which has dumped an amount below each million won, and 443,00,000 won, shall be determined as a penalty surcharge.

E. The plaintiff's application for reduction and dismissal by the defendant

The Plaintiff first filed an application for reduction or exemption (hereinafter referred to as “instant application for reduction or exemption”) with the Defendant, upon submitting a confirmation confirming the collaborative act on May 13, 2014 in relation to the first collaborative act and a statement of passbook transaction that received the collusion consultation amount, etc. on May 13, 2014. The Defendant secured sufficient evidence to prove the collaborative act in this case by submitting the Plaintiff’s report, data, and on-site investigation before the Plaintiff’s application for reduction or exemption. As such, the instant application for reduction or exemption failed to meet the requirements under Article 35(1)2 (a) of the Enforcement Decree of the Fair Trade Act without examining the remainder of the requirements for reduction or exemption, on the ground that the instant application for reduction or exemption is dismissed, and the instant application for reduction or exemption was made by additionally reducing the penalty surcharge of KRW 2,359,000,000 by additionally reducing the penalty surcharge of this case to KRW 2,300,600,00,000.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The first collaborative act was continued for seven years from October 6, 2008 to May 12, 2015. The evidence submitted by the informant was about ① the second half of the year 2013, ② the bidding conducted by Han M in the second half of the year 2013, ② the bidding conducted by HanN in the second half of the year 2013, ③ the bidding conducted by HanM in the second half of the year 2013, and the details of the information are merely the basic materials for the entire collaborative act, and thus, the “Evidence sufficient to prove the unfair collaborative act” cannot be deemed as “the evidence to prove the unfair collaborative act. Therefore, the Plaintiff should be recognized as the one investigative partner, and at least as the one investigation co-contractor with respect to the entire collaborative act conducted before August 2013.

Even if the plaintiff is not the first investigation partner, the plaintiff alone provided evidence to prove the unfair collaborative act following the first investigation partner, stated all facts related to the first collaborative act, submitted relevant data requested by the examiner, etc., and suspended the first collaborative act. Thus, the plaintiff is the second investigation partner on the first collaborative act.

B. Relevant statutes

Attached Form 3 is as shown in the relevant statutes.

C. Determination as to non-existence of the status of the investigating co-offenders: lawful

1) Determination on the grounds for disposition

[Attachment 2] In order to become the first investigative partner under the relevant Acts and subordinate statutes, ① a person who cooperates in an investigation by the Fair Trade Commission after commencing the investigation, ② a person who cooperates in the investigation under the conditions that the Fair Trade Commission fails to obtain information on the unfair collaborative act or fails to obtain sufficient evidence necessary to prove that the unfair collaborative act is an unfair collaborative act; ③ the first person who independently provides evidence necessary to substantiate that the act is an unfair collaborative act; ④ a person who cooperates in the investigation in good faith until the completion of the investigation, such as stating all facts related to the unfair collaborative act and submitting relevant materials; and ⑤ a person who has suspended the unfair collaborative act.

At the time of the instant disposition, the Defendant rejected the instant application for reduction or exemption on the ground that the Plaintiff failed to obtain sufficient evidence necessary to prove that the Defendant was an unfair collaborative act (B) among the requirements required by the first-class investigator and investigator for investigation at the time of the instant disposition. However, in addition to the above grounds for disposition in the instant lawsuit, the Defendant asserts that, in addition to the above grounds for disposition, the Plaintiff failed to meet all the requirements of “the Plaintiff faithfully cooperated until the completion of investigation by stating all facts related to the unfair collaborative act, submitting relevant materials, etc.” (d) and “the suspension of such unfair collaborative act” (d). However, in an appeal litigation seeking the revocation of an administrative disposition, the agency may add or modify other grounds only to the extent that the basic factual relations are identical to those of the initial disposition (Supreme Court Decision 2006Du14735 Decided July 10, 2008).

The grounds for the disposition of this case (the defendant securing sufficient evidence necessary to prove the unfair collaborative act that was already conducted by him) and the grounds for the disposition that the defendant added (the defendant did not cooperate in good faith until the completion of the investigation and did not discontinue the unfair collaborative act) in the lawsuit of this case are separately provided for in Article 35 (1) 2 of the Enforcement Decree of the Fair Trade Act, and therefore, the basic factual relations are different from the provisions of the grounds for the disposition of this case. Therefore, the defendant cannot be deemed to be identical inasmuch as the grounds for the disposition of this case are the grounds for the disposition of this case, and the plaintiff's application for reduction or exemption cannot be added, and the plaintiff's application for reduction or exemption satisfies the above requirements

2) Relevant legal principles

The purpose of the system of reduction or exemption of investigators is to strengthen trust among participating enterprisers by voluntarily cooperating with an investigation and to discontinue or prevent unfair collaborative acts (see Supreme Court Decision 2010Du28915, Jun. 30, 201). Thus, in determining whether a participating enterpriser constitutes reduction or exemption as an investigator, the relevant enterpriser’s contribution to the possibility of detection of unfair collaborative acts should be based (see Supreme Court Decision 2009Du1505, Sept. 8, 2011). Meanwhile, in cases where a series of agreements over several occasions constitute one unfair collaborative act, only the first participating enterpriser who first provides evidence necessary to substantiate the unfair collaborative act, regardless of the timing of participation, acquires the status of the person eligible for reduction or exemption as a whole, regardless of the timing of participation, even if another participating enterpriser first participated or did not report on his/her act during the period of the first participation, it shall be deemed that he/she has separately acquired the status of the person eligible for reduction or exemption as an investigator (see Supreme Court Decision 2010Du38101, Jun. 215, 201010.

Therefore, even if a series of agreements reached a single unfair collaborative act as a whole, if the pertinent business entity voluntarily filed a report, if the Defendant sufficiently secured objective data to substantiate the unfair collaborative act at the time, the pertinent business entity cannot be deemed to be “a person who independently provided evidence necessary to substantiate the unfair collaborative act,” as it cannot be deemed to have contributed to the possibility of detecting the unfair collaborative act, even if the Defendant first submitted and cooperated in the investigation for the period of time that the Defendant did not acquire.” Thus, the status of an investigator under Article 35(1)2 of the Enforcement Decree of the Fair Trade Act cannot be acknowledged.

3) Determination

According to the statements in Gap evidence 2 through 7 (including various numbers; hereinafter the same shall apply), it is difficult to view that the plaintiff constitutes "the first person who provided necessary evidence while the plaintiff failed to obtain sufficient evidence to prove that he is an unfair collaborative act," in full view of the following circumstances acknowledged by the above facts and evidence, Gap evidence No. 11, Eul evidence No. 3, and Eul evidence No. 4 as a whole, and the purport of the argument as a whole, although it is acknowledged that the plaintiff submitted the statement of passbook transaction amount, the statement of passbook transaction amount, the non-party representative director's confirmation, etc. which was paid collusion at the time of the first investigation into the collaborative act of this case on May 13, 2014, which was after the plaintiff started to apply for reduction and exemption." Therefore, the plaintiff does not constitute "the first person who provided the necessary evidence without obtaining sufficient evidence to prove that he is an unfair collaborative act" under Article 35 (1) 2 of the Enforcement Decree of the Fair Trade Act.

(1) Among the 21 participants in the first collaborative act, the reported data submitted by the reporter (No. 2, No. 3-1), the following facts are as follows: (a) the participation in the collusion of the Plaintiff, the Daesung, the chemical engineering, the chemical engineering, the SymbC, the SymbC, the SymbC, the SymbC, the Korea-U.S.C., and the Korea-U.M.C.; (b) the conference place of the first collaborative act is ○○○ hotel; (c) the company proposing the highest collusion among the participants is the successful bidder; and (d) the remaining companies are participating in the successful bid; and (e) the participation of the successful bidder is divided into 1/N of the consultation funds paid by the successful bidder; and (e) the consultation funds mainly are sent to the Russian bank account. According to each of the above facts, the details and methods of the contact among the participants in the second collaborative act, the process of the successful bidder in the bid; and (e) the details and methods of the successful bidder.

② On August 9, 2013, the reporter reported the said 11 company on August 9, 2013, stated the basic contents of the first collaborative act related to the collaborative act, such as the process of the △△△ Council meetings, the successful bidder and the bid price determination method, and the method of payment of the collusion amount, in accordance with the principle of self-sufficiency, and submitted objective and detailed data, such as the details of entry and exit of the passbook through which it can be proven, specific cases of collusion, field photographs, recording records, video image, etc. The above evidence clearly indicates the source and its contents are not clear, and it is highly reliable because it is not possible for the person involved in the

③ On May 13, 2014, the Defendant, through the first on-site investigation, submitted only a certificate of collusion (Evidence 2) to recognize collusion at the time of receipt by the Plaintiff on May 13, 2014, and submitted detailed documents of the passbook transaction (Evidence 3), written by △△△ Council, one of the core evidentiary materials of the instant collaborative act, △△ Council’s report on the settlement of accounts, and a work pocket book owned by friendliness. This means that the Defendant secured sufficient evidence to prove that the Plaintiff already cooperateed in the investigation on May 28, 2014 at the time of receipt of the Plaintiff’s application for reduction or exemption.

④ According to the delegation of the Enforcement Decree of the Fair Trade Act, Article 4 of the said Act provides that “Evidence necessary to prove that the relevant collaborative act is an unfair collaborative act” requires that the said “materials to directly substantiate the existence of agreements, minutes, etc. made between the enterprisers participating in the relevant collaborative act” (hereinafter “direct materials”) or “materials to specifically describe the fact that the collaborative act was discussed or implemented, such as a written confirmation, statement, etc. of the executives and employees participating in the relevant collaborative act” (hereinafter “technical materials”) pursuant to the principle of self-regulation. However, in the case of technical materials, the said technical materials require that “documents, articles, electronic materials, communications materials, etc.” (hereinafter “additional materials”) be submitted to verify the intentions and meetings between the enterprisers described in the technical materials, the contents of the agreement, and matters concerning the implementation of the agreement. Accordingly, in order to benefit from the reduction or exemption of penalty surcharges, etc., the said materials should be submitted directly as “necessary materials” or the technical materials and additional materials should be submitted. 20,000,300 evidence No. 13.

⑤ In light of the purport of the reduction and exemption system as seen earlier, the Defendant cannot be deemed as constituting “where sufficient evidence is secured,” which is the requirement for exclusion from reduction and exemption, only if all of the instant collaborative act is proven without being omitted. Even if the Defendant was aware of the period of commencement of the instant collaborative act or the details of the prior collaborative act on August 2013 based on the data submitted by the Plaintiff, the Plaintiff cannot be deemed as having the status of the investigator and investigator for investigation only for the part prior to August 2013 among the instant collaborative act (the first collaborative act) in light of the aforementioned legal doctrine.

D. Determination as to the non-existence of the status of the survey partner in the second priority: Illegality

[Attachment 3] In order to become the second-class investigative partner, ① “a person who voluntarily reports to the Fair Trade Commission before initiating an investigation or who cooperates in an investigation after the Fair Trade Commission initiates an investigation; ② the second-class person who independently provided evidence necessary to substantiate that the person is an unfair collaborative act; ③ “a person who has faithfully cooperateed until the investigation is completed, such as the submission of relevant materials, etc.,” and ④ “a person who has discontinued the unfair collaborative act.”

Comprehensively taking account of the respective descriptions and arguments in subparagraphs 1 and 2 of subparagraphs 4-1 and 4-2, the Plaintiff submitted an application for reduction or exemption of the first collaborative act to the first one among the enterprisers participating in the instant collaborative act on May 13, 2014, and the first written application for reduction or exemption stating that “the submission of this application pursuant to Article 22-2 of the Fair Trade Act, Article 35 of the Enforcement Decree of the same Act, and Article 4 of the Public Notice of Operation of the System for Corrective Measures, etc. against Voluntary Reporters of Unfair Collaborative Acts,” is recognized. However, the Defendant rejected the application for reduction or exemption without any need to examine the remaining requirements for reduction or exemption.

However, the application for reduction or exemption of this case includes not only the status of the first investigator but also the second investigator. The first person who independently provided evidence necessary to substantiate that it is an unfair collaborative act is not always construed as being limited to the applicant for reduction or exemption. Unlike the first investigator, the second investigator is not required to "if the Fair Trade Commission fails to obtain sufficient information on the unfair collaborative act or fails to obtain sufficient evidence necessary to substantiate the unfair collaborative act, it must cooperate in the investigation." Thus, even if the Plaintiff failed to meet the requirements under Article 35 (1) 2 (a) of the Enforcement Decree of the Fair Trade Act, it should have determined that the Plaintiff is a second investigator. Nevertheless, the Defendant dismissed the application for reduction or exemption of this case without determining whether the Plaintiff falls under the second investigator, and thus, the disposition in this case is unlawful (the first person who independently provided evidence necessary to prove the unfair collaborative act in this case is also necessary to interpret the first and the second investigator as the voluntary collaborative act in this case).

3. Conclusion

If so, the disposition of this case rejecting the application for reduction or exemption of this case is unlawful, so it shall be revoked, so it shall be decided as per Disposition by the plaintiff's request.

(attached Form omitted)

Judges Yoon Sung-won (Presiding Judge)

1) N refers to the number of business entities. The amended penalty surcharge is to be reduced by 1/2 in the public notice (in the public notice of the previous penalty surcharge, reduction by 1/2 in the public notice of the previous penalty surcharge). However, since the content is favorable to the person under question, it applies retroactively to the first collaborative act, which is prior to the enforcement date, pursuant to the Addenda to the public notice of the penalty surcharge (in the case of the previous public notice of the penalty surcharge, it is not disadvantageous to the

Note 2) The requirement that the Defendant was unable to obtain sufficient evidence necessary to prove the instant collaborative act.

3) On March 31, 2015, the business closure was excluded from the person in question.